Calcutta High Court (Appellete Side)
Babujee Datta vs Union Of India on 10 August, 2018
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 2977 (W) of 2017
Babujee Datta
Vs.
Union of India, through the Ministry of Petroleum &
Natural Gas & Others.
For the petitioner : Mr. Joydeep Kar, Sr. Advocate
Ms. Kabita Mookherjee, Advocate
Mr. Tarun Aich, Advocate
Mr. Manas Dasgupta, Advocate
For the Union of India : Mr. Asis Mukherjee, Advocate
For the respondent nos. 2 & 3 : Mr. Arunava Ghosh, Advocate
Mr. Debdatta Sen, Advocate
Mr. Rishav Dutta, Advocate
Ms. Atasi Ghosh, Advocate
Heard on : 08.05.2017, 09.11.2017, 16.11.2017,
23.11.2017, 30.11.2017, 01.12.2017,
06.12.2017, 18.12.2017, 04.05.2018,
15.05.2018, 16.05.2018
Judgement on : 10.08.2018
Sambuddha Chakrabarti, J.:
The respondents nos. 2 and 3 have raised a preliminary objection regarding the jurisdiction of this Court to entertain the writ petition. Since the point regarding the jurisdiction of the Court has been raised the same had to be taken up as a preliminary issue.
A brief narration of the fact is necessary to appreciate the substance and the context of the objection raised.
The petitioner who was an employee of the Indian Oil Corporation Limited (Corporation, for short) has, inter alia, challenged the order passed by the appellate authority of the Corporation in New Delhi as well as the entire proceeding along with the orders passed therein, the order passed by the disciplinary authority as well as the enquiry report.
The admitted position is that a departmental enquiry against the petitioner was commenced by a charge-sheet which was issued by the then Managing Director of IBP Limited of which the petitioner was an employee at the relevant point of time. The enquiry report was submitted at New Delhi. The departmental authority by an order dated May 29, 2009 dismissed the petitioner from service. An appeal was preferred by the petitioner before the appellate authority in the office of the Board of Directors in Mumbai as also in the corporate office in Delhi. Finally, the appellate authority located in New Delhi by an order dated October 27, 2016 upheld the order of the disciplinary authority. From this the respondents nos. 2 and 3 have argued that this Court lacks jurisdiction to entertain this writ petition as no part of cause of action for filling this writ petition did arise within the jurisdiction of this Court and, therefore, the writ petition is liable to be dismissed.
It has been the contention of the answering respondents that since the office of the appellate authority is in New Delhi from where the order impugned has been passed and the records of the case are situated outside the jurisdiction of this Court. This Court has no territorial jurisdiction to entertain the writ petition wherein the petitioner has assailed the order of the appellate authority under Article 226 (1) of the Constitution of India.
In support of their contention the answering respondents have relied on a Full Bench judgment in the case of Collector of Customs, Kolkata Vs. East India Commercial Company, Kolkata and Others, reported in AIR 1963 SC 1124. There the only question that fell for consideration before the Supreme Court was whether the High Court would have jurisdiction to issue a writ against the Collector of Customs, Kolkata, in spite of the fact that the order was taken in appeal to the Central Board of Revenue against which the High Court could not issue a writ. The Supreme Court observed that when an appeal is made the appellate authority can do one of the three things viz., i) it may reverse the order under appeal, ii) it may modify that order and iii) it may merely dismiss the appeal and thus confirm the order without any modification. In the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative one and if the High Court has no jurisdiction to issue a writ to the appellate authority it also cannot do the same thing in respect of the original authority once the appeal is disposed of. The Supreme Court further observed that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it, i.e., dismissal of the appeal. In all these cases after the appellate authority had disposed of the appeal either way, the operative order is the one passed by the appellate authority. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it seemed difficult to hold, even in a case where the appellate authority has confirmed the order of the original authority, that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority. In effect, by issuing a writ to the original authority setting aside its order the High Court would be interfering with the order of the appellate authority which had confirmed the order of the original authority even though it has no territorial jurisdiction to issue any writ to the appellate authority. The Supreme Court thus held that on principle when once an order of the original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court it cannot issue a writ against the appellate authority for want of territorial jurisdiction and it would not be open to issue a writ to the original authority which may be within its territorial jurisdiction once the appeal is disposed of.
The respondents further approached the issue of territorial jurisdiction from the point of view of the seat of the appellate authority. According to them, the principal grievance of the petitioner is the order of the appellate authority which is located in Delhi as the order passed by the departmental authority has merged with the order of the appellate authority. The cause of action in the instant case, the respondents contend, would consist of certain facts, viz., the disciplinary proceeding was initiated by the IBP Company Ltd. which had issued the charge-sheet from Mumbai to the petitioner who was posted in Lucknow. Both these places are outside the jurisdiction of this Court. Therefore, the initiation of the departmental proceeding was also from a place outside the jurisdiction of this Court disentitling the Court to entertain this writ petition.
The respondents relied on the judgment in the case of Amulya Ratan Mukherjee Vs. The Deputy Chief Mechanical Engineer, Eastern Railway and Others, reported in AIR 1961 Cal 40, as well as the judgment of the Supreme Court in the case of Union of India Vs. K. V. Janakiraman, reported in (1991) 2 LLJ 570, for a very settled principle of law that a departmental enquiry is commenced by issuing a charge-sheet. Reliance on these two judgments was made obviously to buttress their contention that the departmental enquiry against the petitioner was not only held and concluded in Delhi it was, in fact, initiated by issuing the charge-sheet from outside the territorial limits of this Court.
The said respondents further argued and mentioned in their written notes of submissions that the facts pleaded in the writ petition do not disclose which part of the cause of action did actually arise as against them within the jurisdiction of this Court. Mr. Ghosh, the learned Advocate of the respondents, relied on the case of Oil and Natural Gas Commission Vs. Utpal Kumar Basu and Others, reported in (1994) 4 SCC 711 for a proposition that in determining the objection of lack of territorial jurisdiction the Court must take all the facts pleaded in support of the cause of action in considering albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. Thus, the question of territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial.
Relying on the above judgment the Supreme Court in the case of Union of India and Others Vs. Adani Export Limited and Another, reported in AIR 2002 SC 126, observed that in order to confer jurisdiction on a High Court to entertain a writ petition, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the Court to decide a dispute which has, at least in part, arisen within its jurisdiction. Each and every fact pleaded 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 for the lis or the dispute involved in the case do not give rise to a cause of action so as to confer a territorial jurisdiction on the Court concerned.
Another objection taken by the respondents to the territorial jurisdiction of this Court to entertain the writ petition is the alleged failure on the part of the petitioner to either specify or to say with any degree of certainty in the averments as to which part of the cause of action arose within the jurisdiction of this Court. They wanted to pre-empt a possible argument of the petitioner that writ petition was entertainable as the order impugned was communicated to him at Kolkata and thereby contend that a part of the cause of action arose within the jurisdiction of this Court. Such an argument has no force as there is no specific averment the pleadings that the impugned order passed by the appellate authority was received by him in Kolkata conferring jurisdiction on this Court to entertain the writ petition. Instead, the respondents argued, the contention of the petitioner is that the order of the disciplinary authority merged with the order of the appellate authority which is sought to be set aside by way of this writ petition. Thus, the pleadings do not establish that any part of the cause of action for filling the writ petition did arise within the jurisdiction of this Court.
It has been the persistent case of the Corporation that the entire cause of action, right from the initiation of the departmental enquiry to the order of the appellate authority, arose beyond the territorial limits of this Court. Mr. Ghosh elaborated the stand that if the impugned order is implemented it would mean the dismissal of the petitioner from the Lucknow office of the Corporation where he was last posted which is clearly outside the territorial jurisdiction of this Court.
In order to establish that mere service of the communication of the impugned order in Kolkata does not confer jurisdiction on this Court to entertain the writ petition, Mr. Ghosh strongly relied on the case of State of Rajasthan and Others Vs. M/s. Swaika Properties and Another, reported in AIR 1985 SC 1289 where the petitioner challenged a notification by the State of Rajasthan for acquisition of certain lands belonging to the petitioner in that State. The notice was served upon the petitioner in the State of West Bengal. A question cropped up for consideration before the Supreme Court was whether service of notice under Section 52 (2) of the Rajasthan Urban Improvement Act, 1959 in Kolkata was an integral part of the cause of action and was sufficient to invest the High Court in Calcutta with jurisdiction to entertain the writ petition. It was answered in the negative by the Supreme Court that mere service of notice in the State of West Bengal on the owner of a land situated in the State of Rajasthan intimating the State Government's proposal to acquire his land for public purpose did not constitute an integral part of the cause of action sufficient to confer jurisdiction upon Calcutta High Court to entertain the writ petition challenging the validity of the notification. Cause of action, the Supreme Court observed, is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The notification issued by the Government of Rajasthan became effective the moment it was published in the Official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances.
In this connection also Mr. Ghosh relied on the case of Oil and Natural Gas Commission (Supra). In that case NICCO invoked the jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction as it became aware of the contract proposed to be given by ONGC on reading the advertisement which had been published in Kolkata. In response thereto it submitted its bid from its Kolkata Office and when it learnt that it was considered ineligible it sent its representation demanding justice. Thus, the claim of NICCO that a part of the cause of action arose within the jurisdiction of the Calcutta High Court rested on the fact that it became aware of the advertisement in Kolkata, submitted its bid or tender from here and made representations demanding justice from Kolkata. The Supreme Court observed that the Calcutta High Court did not have jurisdiction to entertain the writ petition after observing, "it is indeed a great pity that one of the premier High Courts of the country should appear to have developed a tendency to assume jurisdiction on the sole ground that the petitioner before it resides in or carries on business from a registered office in the State of West Bengal."
In the case of National Textile Corporation Limited and Others Vs. Haribox Swalram and Others, reported in (2004) 9 SCC 786 also a question relating to the territorial jurisdiction of this Court to entertain the writ petition came up for consideration. In that case the textile mills were situated in Bombay and supply of cloth was made by the petitioner's ex- factory at Bombay. Money was paid to the mills at Bombay. Although a learned Single Judge held against the jurisdiction of the Calcutta High Court to entertain the writ petition, a Division Bench reversed the findings on the ground that the concluded contract had come into existence which could be cancelled upon giving an opportunity of hearing. Consequently, the question of revocation of the contract at its Calcutta address would constitute a cause of action.
The Supreme Court reversed the view taken by the Division Bench of the Calcutta High Court as wholly erroneous in law. It was nowhere pleaded in the writ petition that the appellant before the Supreme Court had initiated any action under Section 11 of the relevant Act by issuing any notice to the petitioner for cancellation of the contract. The Supreme Court held that the mere fact that the petitioner carries on business at Calcutta or that reply to the correspondence made by it was received at Calcutta is not an integral part of the cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view taken by the Division Bench could not be sustained.
In Alchemist Limited and Another Vs. State Bank of Sikkim and Others, reported in (2007) 11 SCC 335, the case made out by the appellants for invoking the jurisdiction of the High Court of Punjab and Haryana was that a part of the cause of action did arise within the territorial jurisdiction of that High Court. Their contentions were based on certain facts, viz., the appellant company had its registered and corporate office at Chandigarh, it carried on business there, the offer of the appellant company was accepted and communicated at Chandigarh, part performance of the contract had taken place at Chandigarh, negotiations were held between the parties at Chandigarh and the letter of revocation was also received by the company at that place, the company was aggrieved because of the consequences of the revocation at Chandigarh.
The Supreme Court held that for the purpose of deciding whether the facts averred by the appellant/petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of this Court, the Court would have territorial jurisdiction to entertain the writ petition. But it must be a part of cause of action, nothing less than that. The Supreme Court held in the context of that case that the facts pleaded by the company could not be said to be essential, integral or material facts so as to constitute a part of cause of action within the meaning of Article 226 (2) of the Constitution of India.
The respondents further placed reliance on an unreported judgment of the Kerala High Court in The Registrar Vs. K. G. Biswanathan (W.A 743 of 2014, W.P (C) 22184 of 2013 and 8678 of 2014) where a three-judge Bench had occasion to consider a similar issue. The bench relied on an earlier full bench judgment of the same High Court in Nakul Deo Singh Vs. Deputy Commissioner, reported in 1999 (3) KLT 629, where also the question was whether a decision rendered by an authority located outside the jurisdiction of a Court, when communicated to the party while he is within the jurisdiction of that Court, is a fact in the bundle of facts constituting the cause of action. Several paragraphs of the judgment in Nakul Deo Singh (Supra) have been quoted in the subsequent judgment of which the respondents placed special importance to Paragraph 19 where Their Lordships were considering whether on communication of an order at a certain place gives a man a right to approach the Court for a relief.
The Full Bench of the Kerala High Court quoted a passage from American Jurisprudence for appreciating a distinction between 'a cause of action' and 'a right of action'. It has been observed there that a right of action is the right to presently enforce a cause of action, i.e. a remedial right affording redress for the infringement of the legal right belonging to same definite person. A cause of action is the operative facts which give rise to a right of action. The point of distinction as laid down in American Jurisprudence is that right of action does not arise until the performance of the conditions precedent to the action and may be taken away by the statute of the limitation, through an estoppels or by any other circumstances which do not affect the cause of action. There may be several rights of action and one cause of action and the rights may accrue at different times from the same cause.
The Full Bench of the Kerala High Court in Nakul Deo Singh observed that merely because the petitioner was working in Kerala at the time when he had received a copy of the order dismissing his appeal, could not be said to be a part of the cause of action to challenge the appellate order as no part of the cause of action arose within the jurisdiction of that High Court. The three-judge Bench in the case of Registrar Vs. K. G. Biswanathan (Supra) held that there was no averment in the writ petitions where the petitioner had raised any plea how that High Court had territorial jurisdiction over the cause of action which led them to file the writ petitions. The Bench held that in the light of the law laid down by the Full Bench as well as judgment of the Supreme Court the only possible conclusion was possible is that no part of the cause of action, much less any integral part had arisen within territorial jurisdiction of the Kerala High Court justifying the entertainment of the writ petitions.
Jurisdiction of a High Court to entertain a writ petition based on the place where a party has been served with an order came up for consideration in umptin number of judgments of various High Courts. One such relied on by Mr. Ghosh is S. K. Chatterjee and Others Vs. Eastern Coalfield Ltd. and Others, reported in 1986 (1) CHN 1. There a Division Bench of this Court held that in spite of the fact that a copy of the order was sent by the tribunal at the registered office of the petitioner in Burdwan, it did not give rise to a part of the cause of action. The tribunal was under no obligation to send the copy of the order to the respondents as sending the impugned order was not a pre-condition to the filing of a suit or for an action for challenging the legality and the propriety thereof. This fact, the Division Bench observed, did not give rise to a part of the cause of action within territorial jurisdiction of this Court.
In Modern Malleable Casting Works Ltd. Vs. M/s. Star Iron Works Ltd. and Others, reported in 1995 (II) CHN 433 a Division Bench of this Court held that if the entire bundle of facts occur beyond the territorial jurisdiction of a High Court mere receipt of a communication within its jurisdiction will not confer jurisdiction on that High Court to entertain a writ petition. After analyzing the factual aspect of the case it was observed that the National Thermal Power Corporation Ltd. had formulated a policy for Delhi Electricity Supply Undertaking and the tender notice was published in Delhi. The rejection and acceptance of offer did take place in Delhi. Therefore, the communication, that too made from Delhi, by itself did not confer any jurisdiction on this Court.
Mr. Ghosh multiplied the authorities on the same point. One such is Sukhendu Sardar Vs. Union of India reported in 2003(3) CHN 132. There a convict employee of Border Security Force challenged the charge sheet, the entire process of trial and the final order of punishment. The appellate authority affirmed the order. In defence to the challenge to the jurisdiction of this Court to entertain the petition it was argued on behalf of the petitioner that he was suffering imprisonment in Dum Dum Central Jail and therefore, a part of cause of action had arisen within the territorial jurisdiction of this Court. It was further contended that the statutory appeal was preferred from the staid place and the order of the appellate authority had also been served upon him through Superintendent of Dum Dum Central Jail. A learned Single Judge of this Court relying on the cases of Union of India and Others Vs. Adani Export Ltd. and Another (Supra) and State of Rajasthan and Others Vs. M/s. Swaika Properties and Another (Supra) held that merely because the final order of the appellate authority had been communicated to the petitioner such fact cannot confer jurisdiction of this Court to entertain the writ petition.
Mr. Ghosh again relied on a judgment of this Court which followed the principle of law laid down by the Supreme Court in several judgments and to which Mr. Ghosh had already referred. In one such case the appellant, a non-banking financial company, having its registered office at Kolkata received summons issued from Kerala. A learned Single Judge having dismissed the writ petition for want of jurisdiction the petitioner filed an appeal. In appeal in Magma Finance Corp. Ltd. Vs. Assistant Director, DGCEI, Kochi, reported in 2014 (1) CHN (Cal) 697, a Division Bench of this Court held that the fact that the impugned summons have been received in Kolkata by the appellant company was an incidental one and did not constitute an integral part of cause of action so as to vest jurisdiction in this Court.
Union of India and Others Vs. Bhadur/Bahadur Singh and Others, reported in 2003 (4) CHN 222 dealt with a situation where admittedly the subject matter of challenge was a judgment of the Central Administrative Tribunal. The application was initially filed before the Kolkata Bench of the Tribunal but it was ultimately heard and disposed of by the circuit bench at Gangtok. A Division Bench of this Court held that the writ petition challenging the Tribunal's judgments fell within the territorial jurisdiction of Sikkim High Court and not Calcutta High Court. The Court expressed the view that initial institution of the proceeding in Kolkata did not give jurisdiction to this Court. The subject matter of challenge is admittedly the judgment of the Tribunal and the matter was heard in Sikkim. The subsequent sending of the records after the judgment was delivered to the Kolkata Office of the bench also did not confer jurisdiction on this Court as those were merely for administrative convenience without creating jurisdiction in favour of this High Court.
Chinithon Engineering Private Limited Vs. Secretary, Department of Atomic Energy and Others (MAT 149 of 2009) was delivered by a Division Bench of this Court on September 7, 2009 holding that the facts pleaded by the petitioner could not be said to be an essential or integral or material fact so as to constitute a part of the cause of action within the meaning of Article 226 (2) of the Constitution of India. Relying on a long line of judgments the High Court declined to entertain writ petition and exercise jurisdiction.
Before we proceed to consider the validity of the submissions of the respondents on the issue of want of territorial jurisdiction it is necessary to consider the provisions contained in Article 226 of the Constitution of India. The Article, as amended, reads as follows:
"Art: 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 certiorati, or any of them, for the enforecement 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 (20 of article 32."
Thus under Article 226 of the Constitution of India High Courts have power throughout the territories to which they exercise their jurisdiction to issue orders or writs as specified in Article 226 (1). Article 226 (2) empowers High Courts to issue directions, orders or writs to any government or authority or person in relation to the territory within which the cause of action either wholly or in part arises for the exercises of such power, notwithstanding the fact that the seat of such government or authority or the residence of such person is not within the territory of the High Court.
It makes it very clear that a High Court can always exercise jurisdiction in respect of a case where the cause of action either wholly or partly arises within its jurisdiction. A High Court is empowered to entertain a lis even in a case where seat of the government or the appropriate authority is situated outside, provided the cause of action, wholly or partly, arises within its jurisdiction.
If this is the legal position what inescapably follows is that a party to a proceeding can invoke the jurisdiction of a High Court if his legal rights have been infringed by the respondents within the jurisdiction of this Court. This is irrespective of where the seat of the respondent government or the authority may be. This being the settled legal position consideration of the factual position of the present case in greater details than what has been discussed earlier is called for to decide whether the cause of action in the instant writ petition or any part of it can be said to have arisen within the territorial limits of this Court. We may take a stock of some indisputable, and consequently admitted, basic facts relating to the departmental proceeding initiated against the petitioner.
The writ petitioner was originally an employee of IBP in Kolkata. He was promoted to the post of General Manager (Lubes) at its Kolkata office which was also the registered office of the IBP. He was subsequently transferred and that order was also served at the Kolkata office. He made a prayer in Kolkata against the order of transfer. The prayer of the petitioner having been turned down he resigned from the company. The letter of resignation was tendered at the Kolkata office. The respondents refused to accept the resignation from its Kolkata office.
Subsequently, a show cause notice was issued by the company to the petitioner from its corporate and its registered office situated in Kolkata. The petitioner made a representation on April 22, 2004 which was addressed to the Managing Director of IBP Company at its Kolkata office. This was followed by a further reply, dated April 28, 2004, which too was submitted to the Managing Director of company at its registered office in Kolkata.
Under a scheme of amalgamation IBP Company merged with the Indian Oil Corporation on April 30, 2007. The respondents argued that before the show cause notice was issued to the petitioner the Director (Marketing) assumed the additional charge of the Managing Director of IBP Company at Mumbai. The charge-sheet was issued from Mumbai, signed by the Managing Director. An internal circular dated May 3, 2004 was produced by Mr. Ghosh in court to show that Dr. N. G. Karnan, Director (Marketing) of the Indian Oil Corporation had taken over the additional charge of the post of Managing Director with effect from May 1, 2004. The purpose for producing this internal document appears to be to sustain the case that the charge sheet was issued from Mumbai.
This document, however, does not by itself prove that the charge sheet was issued from Mumbai. Without anything more mere assumption of an additional charge by the Director (Marketing) is a unique indicator, far less a conclusive proof, of the fact sought to be established by the respondents. After all the charge sheet does not disclose from which office or the address from where the same was issued.
But one thing stands out very clear from the charge sheet itself. It was addressed to the petitioner who was described as the Ex-GM (Lubes), IBP Company Limited, Kolkata i.e. the post which the petitioner had held while he was discharging his duties in Kolkata. The articles of charge related to the alleged misconduct of the petitioner while functioning as GM (Lubes) of the IBP Company Limited in Kolkata. That the charge sheet was served upon the petitioner in Kolkata has not been very seriously disputed by the respondents and it also transpires from the opening sentence of the order of the disciplinary authority.
The petitioner had earlier filed a writ petition being WP No.2243 of 2005. A learned single Judge of this Court by an order dated December 22, 2005, had given liberty to the respondents to proceed with the enquiry. The petitioner was granted liberty to attend the same without prejudice to his rights and contentions in the writ petition; but the disciplinary authority was directed not to pass the final order without the leave of the Court. The question of maintainability was kept open.
It has been a case of the petitioner that the same set of respondents who have been impleaded in this writ petition did never take any point about the lack of territorial jurisdiction in W.P. No. 2243 of 2005 and never raised any objection to the entertainability of that petition by this Court for want of jurisdiction. This Court has been informed that in the affidavits filed to that writ petition the respondents never questioned territorial jurisdiction of this Court to entertain the writ petition.
The registered office of the Company even after the amalgamation with the Indian Oil Corporation Limited (IOCL) continued to be at Kolkata although the corporate office was shifted to Delhi. It cannot be gainsaid that IOCL carries its business through its various offices and one of them is in Kolkata and the petitioner was employed here under the IBP Company.
Annexure P-25 to the writ petition is a letter written by the General Manager (HR) IOCL on June 12, 2008 by which the petitioner was informed that consequent upon reaching the age of superannuation he had ceased to be in employment of the IOCL which asked the petitioner to pay a sum of Rs.1,78,667.27/- as dues payable to the Corporation.
W.P No.2243 of 2005 was disposed of on March 28, 2009 directing the respondents to complete the disciplinary proceeding within 3 months. Ultimately the final order of punishment was passed by the respondent corporation which was served upon the petitioner in Kolkata.
The petitioner was aggrieved with the order in W.P. 2243 of 2005 and filed an appeal. The said appeal was disposed of by an order dated march 15, 2016 when the Division Bench had, inter alia, given liberty to the petitioner to file a statutory appeal. It was further observed that since the opinion of the learned single Judge expressed in the judgment impugned in that appeal could not affect the right of the appellant in this statutory appeal the judgment was set aside as if no opinion was expressed on merit on the writ petition with regard to the challenge to issue the charge sheet and other reliefs sought in that writ petition.
It does not appear from the order of the Division Bench that there also the respondents had ever taken the point of want of territorial jurisdiction of this Court to entertain the appeal.
It is the case of the petitioner that pursuant to the leave granted by the Division Bench he had filed a departmental appeal and by an order dated October 27, 2016 the appellate authority dismissed the appeal. The said order was communicated to the petitioner by a letter, dated November 9, 2016 in Kolkata.
Much of the argument of the respondents in support of their contention that this Court lacks territorial jurisdiction relate to the situs of the authority, either disciplinary or appellate or both. Mr. Ghosh argued with emphasis that neither the disciplinary proceeding was conducted within the territorial jurisdiction of this Court nor was the appeal heard and disposed of within the territorial limits of this Court. Thus all the facts constituting the cause of action of the petitioner against the corporation having arisen outside the jurisdiction of this Court, this Court is not competent to entertain the writ petition.
It may be mentioned that this writ petition is not directed against the order of the appellate authority alone. The petitioner has challenged the entire proceeding right from the commencement of the disciplinary action till its ultimate culmination by the order of the appellate authority.
Undoubtedly, if one goes by the place where the disciplinary authority had passed the order or appellate authority dismissed the appeal this Court lacks jurisdiction to entertain the writ petition. But the problem is a little too complex than that and cannot be approached with that straightjacket formulation as the situs of the disciplinary and appellate authority is connected with various factors which have to be taken into consideration in order to determine the preliminary objection taken by the respondents.
That a disciplinary proceeding is initiated with issue of a charge sheet is very well settled. A far more important issue to be addressed is whether any part of the cause of action did arise within the territorial limits of this High Court too. On two points there cannot be any dispute, viz, that the charge sheet was received by the petitioner in Kolkata and his right was affected within the territorial jurisdiction of this Court. Moreover all that the charge sheet alleged against the petitioner did undoubtedly take place when he was working as the General Manager (Lubes) in the Kolkata office. Thus, definitely the cause of action for initiating the departmental proceeding did take place in Kolkata.
The petitioner has repeatedly referred to the earlier writ petition where the respondents did not take any exception to the jurisdiction of the High Court. The subject of challenge there was the validity of the charge sheet. In the appeal filed by the petitioner against the order of the learned single Judge the respondents submitted that a statutory appeal has to be preferred before the appellate authority challenging the dismissal of the petitioner and appropriation of retiral benefits towards the alleged damage or loss caused to the company. The Division Bench granted liberty to the petitioner to approach the appellate authority within a certain period from the date of the receipt of the order. It was pursuant to this order that the appellate authority exercised its jurisdiction which will be quite obvious from the very opening sentence of the order impugned in the writ petition as well as from the description of the subject matter in the minutes. Thus one thing stands out very clearly that the appellate authority entered into the merits of the matter and exercised jurisdiction only pursuant to the order passed by this Court in appeal.
In the earlier rounds of litigation, the respondent corporation not only did not take any point about the jurisdiction of the court to pass the order, either before the learned single Judge or before the appellate bench, even in the order impugned there is no whisper that the order of the Court was without jurisdiction.
This, however, is not to suggest that once a Court assumes jurisdiction without any objection from the respondents they shall have no right to raise the issue regarding and object to the same in the subsequent rounds of litigation. Conversely seen, as a pure theoretical proposition of law even if the respondents had consented to jurisdiction earlier they can neither be injuncted from raising the same issue over again in the subsequent proceeding nor can a mistaken consent, if at all, be insisted to be perpetuated.
The respondent nos. 2 and 3 have sought to overcome the consequences of the failure to take the objection to the maintainability of the earlier two writ petitions by seeking to draw a distinction between the scope of the earlier petitions and the present one. They submitted that the subject matter of challenge in the first writ petition was the decision of the answering respondent not to release the dues of the petitioner as well as the decision to initiate disciplinary proceeding against him by issuing a charge-sheet. The appellate court by an order dated March 15, 2014 arising out of the order of the learned single Judge had recognized that the dispute related to the issue of a charge-sheet. So far as the second writ petition is concerned, the respondents submit, it was for seeking a direction upon the appellate authority to dispose of the statutory appeal within a certain time.
It has been submitted by the respondents nos. 2 and 3 that in none of these petitions the court had any occasion to go into the merits of the case or had the opportunity to review the order of the appellate authority which was passed subsequently.
This effort to distinguish between the earlier writ petitions and the present one must be held to be too artificial deserving any serious consideration. Facts of no two cases can be identical, particularly in a case like this where the petitioner has been challenging different stages of the actions taken against him by the respondents. Therefore, the scope of challenge for each writ petition shall be very different from the other. It's no answer on the part of the respondents nos. 2 and 3 that the issue of charge-sheet or the delay in disposal of the statutory appeal were the subject matters of challenge in the earlier rounds of litigation. If the respondents maintain that the charge-sheet was issued from Mumbai or the seat of appellate authority is in Delhi, as has been their contention in the present writ petition for which they argue the writ petition is not maintainable in this Court for want of territorial jurisdiction, the same was also available with the respondents in the previous writ petitions as well. When the petitioner was seeking direction upon the appellate authority to dispose of the appeal at an early date, the address of the appellate authority was no different from the present one, nor did the place of issuing the charge-sheet had been altered. Thus by pointing out the difference in the scope of the respective writ petitions the respondents do not stand to gain anything.
The further contention of the respondents that the court did not enter into the merits of the case is hardly a point worthy of any reckoning. The merit of the writ petition is not to be confused with the question of territorial jurisdiction. It is a settled principle of law that if a court lacks jurisdiction to entertain a petition it has no authority to pass any order on it. The submission of the respondent company, if accepted, would mean that if a court does not have any jurisdiction to entertain a writ petition it cannot decide the matter on merits; but can pass other orders which includes issuing necessary directions upon the respondents, but short of deciding the case on merits.
Such an effort on the part of the respondents must be held to be as thoroughly unsustainable. They sought to draw a distinction without any difference and that too on incorrect appreciation of factual position and unsustainable provision of law.
While the broad proposition of law that once consent is given it must not be perpetuated is unexceptionally true it is equally true that by not raising the point which they seek now to agitate the respondents had lulled the petitioner into a belief that this Court has determination to entertain the case. If the respondents had taken the point relating to jurisdiction in the earlier petitions, the petitioner might not have approached this court in the present round of litigation or at least he would have been saved of a harassment of being sprung a surprise kept hidden under the sleeves of the respondents. But harassment of a litigant neither confers jurisdiction on a court nor does it provide a raison d' etre for it to exercise jurisdiction if it does not really have any such.
This calls for an examination whether from the point of view of accrual of the cause of action this Court can be said to have any jurisdiction to entertain the writ petition.
It is pertinent to mention that since the respondents did not take any step pursuant to the order passed by the Division Bench on March 15, 2016 the petitioner filed another writ petition being W.P. 177165 (W) of 2016 for a direction upon the IOCL to dispose of the statutory appeal within a fixed timeframe. The learned advocate representing the respondents again did not raise any objection to the jurisdiction of this court, but merely prayed for a period of three months for the statutory appeal to be decided. On such submission the Court by its order, dated September 15, 2016 directed the respondents to decide the appeal within the said period.
Thus, at no stage of the earlier proceedings objection to the territorial jurisdiction of this Court was taken by the respondents. As mentioned earlier, this by itself may not be sufficient to pre-empt IOCL from taking this objection in a subsequent proceeding. But the various stands taken by a public body in connection with the same case is not also appreciated.
In the case of Om Prakash Shrivastava Vs. Union of India and Another, reported in (2006) 6 SCC 207 the Supreme Court had occasion to consider the issue relating to accrual of cause of action within the territorial limits of a High Court. The Supreme Court relying on the case of Oil and Natural Gas Commission (Supra) held that two clauses of Article 226 of the Constitution of India on a plain reading give clear indication that the High Court can exercise power to issue direction, order or writs for enforcement of the fundamental rights or for any other purpose, if the cause of action wholly or in part arises within the territories in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or the authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. It was further observed that the question whether or not a cause of action, wholly or in part for filing a writ petition, has arisen within the territorial limits of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution of India. In order to maintain a writ petition the petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondents within the territorial limits of the Court and such infringement may take place by causing him actual injury or threat of it.
Thus, from the mere fact that the seat of the disciplinary authority and the appellate authority is located the outside the territorial limits of this Court it will be naive to rush to a conclusion of the ouster of its jurisdiction. A more important area of enquiry would be to examine the situs where the right of the petitioner had been infringed. Once the petitioner succeeds in establishing that the legal right claimed by him has been infringed or is threatened to be infringed within the territorial limits of a High Court, that High Court cannot be said to have no jurisdiction to entertain the writ petition. The legal right of the petitioner has undoubtedly been infringed in Kolkata as he was served with the charge-sheet in Kolkata, for the acts alleged to have been done by him in Kolkata, the orders passed by the disciplinary authority as well as the appellate authority were served upon him in Kolkata and the petitioner was given liberty by this Court to file the statutory appeal.
In more recent times a similar question came up for consideration before the Supreme Court in the case of Nawal Kishore Sharma Vs. Union of India and Others, reported in (2014) 9 SCC 329. In that case the appellant was an employee of the Shipping Corporation of India and was posted in Mumbai. Subsequently he was declared permanently unfit for sea service and the Shipping Department, Government of India, issued an order from Mumbai cancelling his registration as a seaman. Thereafter he settled at his native place at Gaya. He made several representations from Gaya to the respondents raising a financial claim as per the statutory provisions and in terms of the contract. He filed a writ petition in the Patna High Court for certain reliefs including disability compensation and pecuniary damages.
The respondents in that case raised the question of maintainability of the writ petition there on the ground that no part of the cause of action or even a fraction of it arose within the territorial jurisdiction of the Patna High Court. It was their contention that the appellant was appointed by the Shipping Corporation of India and he discharged his duty outside the territory of Bihar. The case of the appellant on the other hand was that he was a permanent resident of Bihar wherefrom he asserted his right and all communications with regard to his claims, including their rejection, were made at his residential address in the state of Bihar. The Patna High Court dismissed the writ petition for the want of jurisdiction holding that no part of the cause of action arose within the territorial limits of that Court. The Supreme Court after examining the various facts reversed the order of the Patna High Court. The reasons for the same have been mentioned in paragraph 17 of the judgment which reads as follows:
"We have perused the facts pleaded in the writ petition and the documents relied upon by the appellant. Indisputably, the appellant reported sickness on account of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment. Finally, the respondent permanently declared the appellant unfit for sea service due to dilated cardiomyopathy (heart muscle disease). As a result, the Shipping Department of the Government of India issued an Order on 12-4-2011 cancelling the registration of the appellant as a seaman. A copy of the letter was sent to the appellant at his native place in Bihar where he was staying after he was found medically unfit. It further appears that the appellant sent a representation from his home in the State of Bihar to the respondent claiming disability compensation. The said representation was rejected by the respondent, which was addressed to him on his home address in Gaya, Bihar rejecting his claim for disability compensation. It is further evident that when the appellant was signed off and declared medically unfit, he returned back to his home in the district of Gaya, Bihar and, thereafter, he made all claims and filed representation from his home address at Gaya and those letters and representations were entertained by the respondent and replied and a decision on those representations were communicated to him on his home address in Bihar. Admittedly, the appellant was suffering from serious heart muscle disease (dilated cardiomyop0athy) and breathing problem which forced him to stay in his native place, wherefrom he had been making all correspondence with regard to his disability compensation. Prima facie, therefore, considering all the facts together, a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation."
A bare reading of the above makes it abundantly clear that the Supreme Court had laid great emphasis on the place from where the communication was made by the appellant and where the respondents' communication reached him. The communications made by the appellant from his native place at Gaya were entertained by the respondents and, therefore, all the factors taken together, the Supreme Court observed that a part of cause of action arose within the jurisdiction of the Patna High Court.
The parameters laid down by the Supreme Court to be taken into consideration in Nawal Kishore Sharma (Supra) must be held to be applying to the facts of the present case as well. This is also a case where the petitioner was all through working in Kolkata, the charges against the petitioner related to the alleged acts in Kolkata and the final orders of the disciplinary authority as well as the appellate authority were also served upon him in Kolkata.
Mr. Ghosh very strenuously sought to distinguish Nawal Kishore Sharma (supra) by referring to the factual background of the case which by themselves do not constitute any substantial distinction if one remembers the age-old adage that no two cases match with each other identically. It has been argued by the respondents on the basis of the contents of paragraphs 18 and 19 of the said judgment that since the writ petition was entertained and an interim order was passed without the respondents' raising any objection to the jurisdiction of the High Court, the High Court ought not to have dismissed the writ petition for want of territorial jurisdiction. Mr. Ghosh would like to read the words "peculiar facts and circumstances of the case" as the primary reason behind the judgment. He submitted that this judgment does not really lay down any principle of law, on the contrary it was only for the peculiar facts of the case that the Supreme Court had passed order, more in exercise of the power conferred by Article 142 of the Constitution of India. It has been very strenuously argued that in the case before the Supreme Court the basis of the decision was the representation made by the appellant from Gaya and the respondents' communication of their decision at Gaya. But in the present case the appellant filed the appeal at the office of the Board of Directors and also at the corporate office of the IOCL in New Delhi. The order of the appellate authority also was passed in New Delhi. The petitioner was an employee of the Lucknow branch of IBP wherefrom he had been dismissed from service. Moreover, in the present case the point of jurisdiction has been taken at the very outset, but in Nawal Kishore Sharma (supra) the respondents had taken the objection of territorial jurisdiction only at the hearing of the writ petition.
The distinction sought to be highlighted, magnified disproportionately and largely unwarrantedly, hardly makes any distinction in the matter of the principle laid down by the Supreme Court. It is not correct to contend that merely because the Supreme Court had used the words "peculiar facts and circumstances of this case" no principle of law has been laid down therein. To reach such a conclusion which Mr. Ghosh would like the Court to believe, would definitely amount to wholly ignoring the detailed discussion contained in paragraphs 9 -17 of the said judgment. An order impugned may not be sustained for the peculiar facts and circumstances involved in it; but that cannot be equated with the positive finding of jurisdiction as observed by the Supreme Court in paragraph 17 of the writ petition. Thus the observation made by the Kerela High Court in the case of Registrar v. K.G. Viswanathan (supra) is respectfully differed from. It is not a case of the apex court's attempting to strike a note of departure from the law settled by it earlier.
Moreover, the question in the present case is not only where the petitioner had received the communication, but more importantly where the cause of action for the disciplinary proceeding arose. The observations made in paragraphs 18-19 of Nawal Kishore Sharma (supra), if read in their proper context, go against the respondents in a major way which will be discussed later.
Relying on the judgment of the Kerela High Court Mr. Ghosh referred to Article 142 of the Constitution of India. Mr. Ghosh has relied on the judgment in the case of State of Punjab Vs. Rafiq Masih, reported in (2014) 8 SCC 883, for a proposition that directions issued under Article 142 do not constitute a binding precedent under Article 141 of the Constitution of India. In that case the Supreme Court has reiterated the well settled principle of law that these directions are issued to do proper justice and exercise of power and cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India.
Mr. Ghosh further argued that when the first writ petition was moved the respondents had raised a point regarding the maintainability of that writ petition on the ground of lack of jurisdiction. However, the respondents did not press the point and therefore, waived the point of jurisdiction. A very unusual submission was made by the respondents that since the Division Bench by the order, dated March 15, 2016, had kept all the contentions of the petitioner open for being adjudicated by the appellate authority there is no bar for the respondents No. 2 and 3 to raise the point relating to lack of jurisdiction of this Court to entertain a writ petition challenging the charge-sheet which according to the respondents was issued from Mumbai.
It is not correct to say that in the first writ petition on the prayer of the respondents the maintainability of the writ petition was kept open on the ground of jurisdiction. At least this is not reflected in the order passed by the learned Single Judge while admitting the writ petition. The question of maintainability was kept open undoubtedly, but the point of territorial jurisdiction was never mentioned as the raison d' etre for the same.
That apart, when the Division Bench by its order, dated March 15, 2016, had kept all the contentions open it could never be the territorial jurisdiction of this Court to entertain the challenge to the charge-sheet which was the subject matter of the first writ petition. The Division Bench was considering the scope of the appeal to be decided by the appellate authority. Even in the wildest imagination it could be conceived that the jurisdiction of the High Court was to be decided by the appellate authority or could have been agitated before it. The claim of the respondents that it is competent to raise the point relating to lack of jurisdiction of the High Court to entertain the writ petition does not follow from the order of the Division Bench that all points had been kept open.
The next submission of the respondents is also not very convincing. They submitted that the charge-sheet as well as the order of the disciplinary authority had been merged with the order of the appellate authority and the order of the appellate authority is the cause of action and the subject matter of challenge in the writ petition.
Submitting this the respondents have committed two major mistakes, both factual as well as legal. Factually it is not correct to say that the order of the appellate authority is the subject matter of challenge in the present writ petition. The petitioner has challenged not only the order of the appellate authority but also the disciplinary proceeding which was started by issuing the charge-sheet. A bare reading of the averments in the writ petition and the reliefs prayed therein make it abundantly clear. As such the distinction sought to be made between challenging the charge-sheet and the order of the appellate authority must flounder at the threshold.
That apart, it is not understood why the respondents argued that the charge-sheet merged with the order of the disciplinary authority or the appellate authority. The order of the disciplinary authority must certainly have merged with the order of the appellate authority. But how can a charge-sheet be merged with either of them? A charge-sheet never merges with the order of the disciplinary authority or the appellate authority.
At this stage Mr. Ghosh relied on two judgments and reminded the Court that even if in the earlier rounds of litigation the respondents had not taken any objection relating to want of territorial jurisdiction of this Court to entertain the writ petition, they were not debarred from raising that issue in the present petition. In this connection, he relied on the Judgment in the case Hakam Singh Vs. M/s. Gammon (India) Ltd., reported in AIR 1971 SC 740 and Ashok Layland Ltd. Vs. State of Tamil Nadu reported in AIR 2004 SC 2836 for the said proposition. This principle is far too well settled to require any authority. But the contradictions in the stands of the respondents follow immediately.
It would have been one thing if the respondents had made their submission by resorting to the legal aphorism that jurisdiction is never created by consent of the parties; they, however, decided to proceed further to say that the order without jurisdiction is a nullity and therefore, all actions taken pursuant thereto and in furtherance thereof, must also be declared to be wholly illegal and without jurisdiction. Such orders cannot be supported by invoking procedural principles of law of estoppels, waiver or res judicata. Mr. Ghosh referred to several judgments on this point also, but since the principle is never disputed it is not necessary to refer to them.
A principle of law, even if it is universally accepted without any reservation, is entirely different from its relevance in a given case and its application to a certain set of facts. While making the submission, one suspects, the respondents were probably not alive to the effect it may have on their case itself. What did they want to achieve by saying that an order without jurisdiction is a nullity? Obviously it was not said in respect of the present writ petition, as no order has yet been passed in it touching on the merits of the parties. This submission was made in the context of the silence of the respondents in the earlier writ petitions about the alleged lack of territorial jurisdiction. It was in this context that they had submitted that consent does not confer jurisdiction, interpreting their failure or disinclination to take proper point of objection as a consent.
But if this is simultaneously maintained that an order without jurisdiction is a nullity and all actions taken pursuant thereto are illegal and without jurisdiction, are they not really going against their own case? When they submitted that consent does not confer jurisdiction it was obvious that they were referring to the earlier writ petitions where notwithstanding whether objection to jurisdiction was taken, the order was without jurisdiction and, therefore, a nullity. If that be so, the respondents must also be required to answer the status of the appellate order which had been passed pursuant to the order of this Court. If this Court lacked jurisdiction in respect of the earlier two writ petitions, as is now sought to be made out, their subsequent actions based thereon are equally without jurisdiction and must also be declared to be wholly illegal. Doesn't the axe really fall on the order of the appellate authority itself? At least the appellate authority had no doubt that it had entertained and disposed of the appeal pursuant to the direction given by the High Court which the respondents now seek to establish was an order without jurisdiction, little appreciating that the acts done by the respondents pursuant to the said order without jurisdiction, cannot claim a better fate.
The judgment in the case of P.Dasa Muni Reddy v. P. Appa Rao, reported in AIR 1974 SC 2089 is an authority inter alia on a very settled principle of law that consent cannot confer jurisdiction and one cannot by agreement waive exclusion of jurisdiction of Courts. That was a case where the issue in the suit was whether the appellant became estopped from pleading that the rent control Act could not apply to a certain building as the building from which eviction was sought was constructed in the year 1958 and the relevant rent control Act would not apply to any building constructed subsequent to August, 1957. In this context the Supreme Court observed that the Rent Controller could have no jurisdiction in respect of the building in question because of its date of construction and the decree in the suit before the Rent Controller could not be equated as a res judicata because the Rent Controller would have no jurisdiction to try and decide not only a particular matter in the suit but also the subsequent suit in which the issue was raised. The Supreme Court positively came to a finding that the appellant before it proved that he had mistakenly filed the suit before the Rent Controller considering that the building was outside the mischief of the Act.
In the present case no proceeding was instituted by the respondent by mistake in any Court. The respondents did not take any objection for want of jurisdiction at any stage of the earlier writ petitions or even subsequent thereto. Even if it is accepted as a pure theoretical point of law that their failure to take objection did not confer jurisdiction upon this Court to entertain the writ petitions, their further stand that all steps taken pursuant to the order passed by this Court is a nullity must be held to be going against themselves. Moreover, the observation made in the above-mentioned judgment that the doctrine which the courts of law will recognize is a rule of judicial policy that a person will not be allowed to take inconsistent positions to gain advantage through the aid of court, must go against the stand taken by the respondents. The stand that all actions taken pursuant to the order which the respondents claim to be without jurisdiction and a nullity, is not only self-destructive but also inconsistent. They not having raised any issue about the want of jurisdiction and even submitting to the Court about the time frame within which the appeal would be disposed of cannot now be allowed to take a stand that the Court had no jurisdiction.
Moreover the appropriate stage for taking objection to the competence of a Court to try a proceeding is the earliest one where such objection can be taken. In the case of Shoam Singh and Ors. V. the General Manager, Ordinance Factory, Khararia, Jabalpur & Ors, reported in Air 1981 SC 1862, the Supreme Court set aside the order of the High Court which in turn set aside the order of the Tribunal on the ground that the applications under Section 33 (c) (2) were not entertainable by the Labour Court. The Supreme Court held that instead of challenging the competence of the Labour Court to draw certain issue the respondent went to trial and submitted to its jurisdiction. Jurisdiction of the Labour Court was never challenged by the respondent at the appropriate stage.
Such a view to a very large extent dilutes rigid concept regarding impermissibility of conferment of jurisdiction on a court by mere failure to take an objection. Failure to take objection at the proper stage may be a factor for deciding the permissibility of a party to take a point either at a later stage of the same proceeding or any subsequent proceeding. The principle underlying Section 21 of the Code of Civil procedure is that no objection as to the place of suing shall be allowed to be taken by any appellate or revisional court unless such objection was taken in the court of the first instance at the earliest possible opportunity.
Applying this principle mutatis mutandis to a writ petition it can definitely be held that failure to take objection at one stage shall preclude the respondents from taking the same at any subsequent stage of the proceeding or even a subsequent proceeding where the subject matter of challenge between the two proceedings is largely the same or is otherwise so interconnected that one can always be seen as a subsequent stage of the earlier.
Although in a slightly different context the same has been the view of this Court in the case of Shrimati Suprova Sundani Devi. V. Commissioner of Income Tax, West Bengal, reported in 62 CWN 426. There also this Court had inter alia held that not having taken the point of jurisdiction in the Court below the party was precluded from getting the relief on the point of jurisdiction. It will be futile to contend that in this writ petition there was no scope for taking any objection earlier. This must be interpreted to mean the earlier writ petitions where the respondents despite having all the opportunities chose to be a consenting party to the orders passed.
It is not understood how the judgment in the case of Om Prakash Shrivastava (supra) helps the respondents. At page 6 of the written notes of submission the respondents have mentioned paragraph 7 of the said judgment where the Supreme Court observed that in order to maintain a writ petition the petitioner has to establish that the legal right claimed by him has either prima facie been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court's jurisdiction and such infringement may take place by causing upon him actual injury or threat. This portion of the judgment is sought to be utilized by the respondents by trying to make out a case that the petitioner's legal right to remain in service has been infringed by the appellate authority of the respondent in New Delhi, which had affirmed the order of dismissal passed by the disciplinary authority.
Far from it. The assumption of the infringement of petitioner's legal right seems to be the result of a wrong appreciation of the factual and legal position. The legal right of the petitioner was infringed by the issue of the Charge-sheet. The legal right relates not so much to a right to remain in service. In a case where the petitioner has challenged the entire proceeding against him which has culminated in the order of the appellate authority, the respondents cannot be heard to say that the infringed legal right is in respect of the order of the appellate authority alone or it is restricted to his dismissal from service. There was no order dismissing the petitioner from service at the stage of issuing the charge-sheet, but his legal right was nonetheless threatened. Therefore, the case sought to be made out by the respondent is the result of non-appreciation of the scope of the writ petition as well as the reliefs prayed by the petitioner.
The judgments relied on by the respondents viz., Alchemits Ltd. & Anr (supra), Union of India & Ors Vs. Adani Exports Ltd. & Ors (supra), Modern Malleable Casting Works Ltd. (supra), Oil and Natural Gas Commission (supra), Sukhendu Sarkar (supra) and State of Rajasthan Vs. Swaieka Properties & Anr. (supra) are easily distinguishable on the facts of the respective cases as well as the situation that the Courts were required to deal with. The respondents seem to have attached disproportionate importance to the petitioner's receiving the communication in Kolkata and the entire case made out by them hovered round the proposition that mere service of an order at a certain place does not confer jurisdiction on the Court within whose local limits such order has been served. Consequently they have relied on series of judgments which laid down that mere receipt of a communication will not confer jurisdiction if the entire bundle of facts or the cause of action arose beyond the jurisdiction of the respective High Court. This is based on a principle of law that mere communication of an order does not constitute an integral part of the cause of action.
While relying on these judgments the respondents appear to have missed the scope of the writ petition and its subject matter which are not restricted to the order of the appellate authority. The writ petition directly assails the initiation of the proceeding against the petitioner starting with issue of the charge-sheet. If one considers the contents of the charge-sheet there is no scope for disputing that the cause of action being the infringement of the petitioner's legal right did occur within the jurisdiction of this Court.
The judgment in the case of Kerela High Court i.e. the Registrar Vs. K.G,.Viswanathan (Supra) is clearly a distinguishable one. In that case the consequences of the infringement of the legal right of the petitioners were suffered by them outside the State. It was in this context that it was held by the Kerela High Court that it had no jurisdiction as the legal rights of the petitioners were affected outside the limits of the High Court.
The class of cases relied on by Mr. Ghosh and pronounced before incorporation of Sub-Article (2) of Article 226 of the Constitution of India are no longer very relevant for deciding the territorial jurisdiction of a High Court to entertain a writ petition if cause of action or any part thereof arises within its jurisdiction. The original Article 226 of the Constitution of India reads as follows:
"226. (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by part III and any other purpose.
(2) The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32."
It was only after the subsequent amendment that sub-Article (2) of Article 226 conferred power upon the High Court to issue directions, orders, writs to any Government or authority or person 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 these territories. This amendment had a specific purpose. If the crucial factor was the seat of the Government or the authority, litigants were facing undue hardship as they were not in a position to move a High Court where the cause of action either wholly or in part arose. In order to mitigate this hardship sub-Article (2) of Article 226 was incorporated. Therefore, where, as here, the petitioner bases his case on the ground of accrual of cause of action or any part of it, the judgments relating to the period of pre-42nd amendment to the Constitution of India will not be the sole determining factor for deciding the issue of existence of territorial jurisdiction of the High Court.
All the acts alleged against the petitioner in the charge-sheet having taken place within the territorial limit of this Court it is immaterial from where the charge-sheet was issued. The petitioner not having moved out of Kolkata pursuant to the order of transfer, the charge-sheet was served upon him in Kolkata. So also was the enquiry report. Even if the charge- sheet was issued from outside the jurisdiction of this Court it must have been on the basis of the reports sent there from within the State. As such it can never be said that this Court lacks jurisdiction to entertain the writ petition in which the entire proceedings starting from the issue of the charge-sheet to the order of the appellate authority are under challenge. If the petitioner can succeed in his challenge to the initiation of proceeding i.e. the charge-sheet, all subsequent acts taken pursuant thereto must instantaneously fail.
The issue regarding the jurisdiction of the court has been separately and adequately answered in favour of the petitioner. Regard being had to the case made out in the writ petition and its pleadings, this Court has to hold that it definitely has the jurisdiction to entertain the same.
The preliminary point raised by the respondents regarding the lack of territorial jurisdiction of the court to entertain the writ petition is answered in favour the petitioner and against respondents.
In view of what have been stated above this court finds that the objection taken by the respondents is thoroughly unsustainable. It is a matter of surprise that in the third round of litigation the respondents have come up with the objection relating to the jurisdiction of the court when in the earlier two writ petitions they decided to remain silent. They cannot alter their stands nor can they take inconsistent stands from proceeding to proceeding, relying on the oft-quoted legal maxim that consent does not confer jurisdiction.
The objection of the respondents to the jurisdiction of this Court to entertain the writ petition is without any merit and is hereby overruled. The contention of the respondents are rejected.
But in view of the fact that the objection has been almost relentlessly argued with such unwarranted and disproportionate vehemence that the objection must not only be rejected, it should be with costs. I, therefore, direct the respondents No. 2 and 3 to pay Rs. 10,000/- to the petitioner as costs within a period of three weeks from date. In default, the petitioner shall be entitled to recover the same from the respondents in accordance with law.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) Later:-
After the judgment on the preliminary point is delivered, Mr. Sen, the learned advocate for the respondents nos. 2 and 3 prays for stay of the operation of the order.
For the reasons stated in the text of the judgment, I find no reason to stay its operation. The prayer is heard, considered and rejected.
(Sambuddha Chakrabarti, J.)