Allahabad High Court
Virendra Singh vs Union Of India And 6 Ors. on 7 September, 2017
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
RESERVED ON 09.08.2017
DELIVERED ON 07.09.2017
Case :- WRIT - A No. - 11195 of 2015
Petitioner :- Virendra Singh
Respondent :- Union Of India And 6 Ors.
Counsel for Petitioner :- Indra Prasad Yadav
Counsel for Respondent :- A.S.G.I.,A.S.G.I., Gyan Narayan Kanaujiya, Gyan Prakash, Manoj Kumar Singh, S.C.
Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed by the petitioner challenging order dated 20.04.2006 passed by the Commandant 132 Battalion, C.R.P.F. Komderai CC Pur (Manipur); order dated 05.01.2008 passed by the Commandant 132nd Battalion, Adityapur, Jamshedpur (Jharkhand); order dated 23.07.2008 passed by the Deputy Inspector General of Police, C.R.P.F. Agra Mumbai Road, Gwalior (M.P.); order dated 09.05.2014 passed by Inspector General of Police, Madhya Pradesh Sector, CRPF, Bhopal (M.P.); and order dated 19.03.2015/24.03.2015 passed by the Special Director General, Central Zone, C.R.P.F., Salt Lake, Kolkata (West Bengal). The petitioner has further prayed for issuance of a mandamus to the Respondents to consider the application of the petitioner for voluntary retirement and grant him monthly pension, gratuity and other retiral benefits treating the petitioner to have voluntarily retired w.e.f. 05.01.2008.
2. At the time of hearing of the aforesaid writ petition, the learned counsel for the Respondents, Mr. Gyan Narayan Kanaujiya, has pointed out to this Court that the writ petition was not maintainable as this Court did not have the territorial jurisdiction. It was also pointed out by him that he had raised this preliminary objection regarding the maintainability of the writ petition on the first day of hearing i.e. on 20.04.2015 and on the request of the counsel for the petitioner the matter has been adjourned to enable him to prepare his arguments regarding the maintainability, this adjourment was sought repeatedly by the counsel for the petitioner for past several dates.
3. It has also been pointed out by the learned counsel for the Union of India that initially when the said writ petition was filed a prayer was made only for issuance of the mandamus to the authorities to decide his representation said to be pending and for a mandamus to allow the petitioner to voluntarily retire w.e.f. 05.01.2008. Later on, the Amendment Application was allowed and the prayer for quashing of several orders as mentioned herein above was made by the petitioner.
4. It has been pointed by the counsel for the Respondents No. 1 to 6 that no part of cause of action can be said to have arisen within the territorial jurisdiction of this Court either at Allahabad or at Lucknow. The petitioner was appointed on 11.04.1986 as Constable/G.G. In the C.R.P.F. A memorandum of charge under Section 10 of the CRPF Act was issued by the Commandant 132 Battalion, Komderai CC Pur (Manipur) on 08.09.2005 for unauthorized absence from duty. The petitioner had replied to the charge sheet alleging that when he was coming back from leave his bag was stolen at Railway Station, Etawah (U.P.) and in this connection the petitioner had lodged an FIR in police station at Etawah on 29.08.2005. Later on, on 13.09.2007 the Commandant 132 Battalion, CRPF, again issued a charge sheet to the petitioner under Section 11(1) of the CRPF Act stating that on 26.08.2007 the petitioner went out and drank liquor without permission of the competent authority. The 132 Battalion, CRPF had by then shifted to Adityapur, Jamshedpur (Jharkhand) and therefore, the punishment order was passed on 05.01.2008 at Jharkhan retiring the petitioner compulsorily w.e.f. 05.01.2008, and the period of suspension w.e.f. 28.08.2007 to 20th of January, 2007 was declared as period not spent on duty.
5. It is the case of the petitioner that he had already submitted an Application under Rule 43 of the CRPF Rules, 1955 for voluntary retirement before the competent authority which was still pending. At the same time he had challenged the order of punishment dated 20th of April, 2006, 23rd of June, 2006 and 5th of January, 2008 in Revision under the Rule 29 of CRPF Rules before the Inspector General of Police, Special Sector, CRPF, New Delhi on 01.03.2014. Since the bag of the petitioner had been stolen at Etawah Railway Station, for which he had lodged a First Information Report at Etawah Police Station, and since he has sent the Revision Petition on 01.03.2014 by RMS from Allahabad Railway Junction Railway, which had been rejected on 09.05.2014 by Inspector General of Police, Madhya Pradesh Sector, CRPF, Bhopal (M.P.) which order dated 09.05.2014 has been further challenged by filing representation before the Director General, CRPF on 09.07.2014 from Allahabad High Court Sub Post Office by Speed Post, part of cause of action has arisen within the territorial jurisdiction of this Court.
6. The counsel for the Respondents has pointed out that only these three facts have been mentioned in the whole of the writ petition based on which the learned counsel for the petitioner has attempted to buttress his argument that part of cause of action arose within the territorial jurisdiction of this Court at Allahabad. It is the admitted case of the petitioner that the petitioner is currently residing in Madhya Pradesh.
7. On being questioned by this Court with regard to the submissions made by the counsel for the petitioner that the writ petition was maintainable before this Court, the counsel for the petitioner has placed reliance upon the following judgments:-
(1). Dinesh Chandra Gahtori Vs. Chief of Army Staff & another 2002 (2) UPLBEC 1275;
(2). Rajasthan State Electricity Board Vs. M/s. Universal Petrol Chemicals Ltd. 2009 (1) CRC 325; and (3). Nawal Kishore Sharma Vs. Union of India & others 2014 Volume 143 FLR 1014.
8. On the other hand, the learned counsel for the Respondents has relied upon A Full Bench Decision of this Court in the case of Rajendra Kumar Mishra Vs. Union of India, 2005 (5) AWC 4542 and one unreported judgment delivered by a Division Bench of this Court in Writ - C No. 57290 of 2016 : Shiv Shanker and 391 others Vs. Union of India and 6 others decided on 05.12.2016.
9. I shall consider the judgments relied upon by the learned counsel for the petitioner first.
10. In Dinesh Chandra Gahtori Vs. Chief of Army Staff & another (supra), the Hon'ble Supreme Court took into account the fact that although the Summary Court Martial proceedings were conducted in the State of Punjab and orders impugned were also passed in Punjab by the Western Command, the writ petition was filed in High Court at Allahabad in 1992. The High Court had refused to exercise jurisdiction in 1999 and dismissed the writ petition as not maintainable. The writ petition was kept pending for seven years and this fact should have been taken into consideration. An additional observation was made, thus, by the Supreme Court: ".....More importantly, it should have taken into consideration fact that the Chief of Army Staff may be sued anywhere in the country. Placing reliance only on the cause of action, as the High Court did was not justified."
11. The second judgment relied upon by the petitioner is in the case of Rajasthan State Electricity Board Vs. M/s. Universal Petrol Chemicals Ltd. 2009 (1) CRC 325. The Board had placed an order for supply of transformer oil with the respondent company which had its registered office and manufacturing unit at Calcutta. Subsequent to the aforesaid purchase order an agreement was also entered into between the parties at Jaipur. Subsequently, the Board has placed another purchase order with the company for transformer oil and the agreement was entered into between the parties again at Jaipur. In terms of the two purchase orders and agreements thereunder bank guarantee had to be furnished by the Respondent-Company. These bank guarantees were executed by Allahabad Bank at Jaipur branch on behalf of the main branch at Calcutta. A clause for arbitration was mentioned in the agreement entered into between the parties and with regard to the jurisdiction of Courts in case of dispute it was specifically mentioned in the agreement that the Courts at Jaipur/Rajasthan alone shall have the jurisdiction. In view of dispute arising the Appellant-Board invoked the bank guarantees and aggrieved by the said action the Respondent-Company filed a petition under Section 20 of the Arbitration Act, 1940 in the nature of a suit in High Court at Calcutta along with an application for interim relief. The learned Single Judge of High Court at Calcutta dismissed the petitioner, but his order was set aside in appeal filed by the Respondents and the matter was remanded for fresh consideration. Again, the learned Single Judge heard the matter afresh and dismissed the petition. An appeal was filed by the Respondent-Company and Division Bench allowed the appeal.
12. The Board approached the Supreme Court. The Supreme Court has observed that indisputably the agreements were entered into between the parties at Jaipur and in terms of the contract/agreement any dispute or difference was to be subject to the jurisdiction of the Courts at Rajasthan. The Supreme Court relied upon the several judgments rendered by it wherein it was held that there may be two or more competent Courts which can entertain a suit consequent upon a part of cause of action having arisen therein. But at the same time if the parties to such an agreement agree to ouster of jurisdiction of one such Court and agree to vest jurisdiction in the other Court, such agreement would be valid and binding. The Court observed that in this case since both the parties with their open eyes had entered into the contract/agreement ousting the jurisdiction of Courts other than the Courts at Jaipur, the Courts at Calcutta had no jurisdiction to entertain the petition. The Registry of the Calcutta High Court was directed to transfer the petition filed by the Respondent-Company under Section 20 of the Arbitration Act, 1940 along with all records to the District Judge, Jaipur.
13. This judgment cited by the learned counsel for the petitioner is inapplicable to the facts of the case of the petitioner. Moreover, a bare reading of the said judgment discloses that the Supreme Court had considered the fact that part of cause of action had, in fact, arisen at Calcutta but in the agreement between the parties the jurisdiction of all Courts other than the Courts at Jaipur (Rajasthan) had been ousted. Hence, the jurisdiction of the Courts in Jaipur alone was recognized.
14. The counsel for the petitioner has also also relied upon the judgment in the case of Nawal Kishore Sharma Vs. Union of India & others (supra). The Hon'ble Supreme Court in the aforesaid case had considered the grievance of the appellant sympathetically. The appellant had been found medically unfit by the Marine Medical Services and he was considered permanently unfit for sea service due to dilated cardiomyopathy (heart muscle disease). The Shipping Department issued an order cancelling the registration of appellant as Seaman. After such an order was issued the appellant had settled in his native place at Gaya in Bihar from where he undertook several correspondences for his financial claims. His disability compensation claim was rejected by the Shipping Corporation of India on the ground that such compensation becomes payable only in case a seaman becomes incapacitated as a result of the injuries during the course of employment. The appellant approached Patna High Court but his case was rejected on the ground of maintainability as no part of cause of action had arisen within the territorial jurisdiction of Patna High Court. It was the appellant's case therein that all communications with respect to rejection of his claims were made at his residential address in the State of Bihar.
15. The Supreme Court considered the Seven Judges' decision in the case of Lieutenant Colnel Khajoor Singh Vs. Union of India and others: AIR 1961 SC 532 and the consequent amendment of the Constitution by insertion of Clause - 1 (A) in Article 226 by 42nd Amendment Act, 1976. By addition of this Clause the High Courts were conferred jurisdiction to issue directions, orders or writs to any Government, 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 those territories.
16. The Supreme Court thereafter considered the definition of "cause of action" as given under Section 20 (c) of the CPC and the expression of the said term "cause of action" appearing in Clause - 2 of Article 226 as considered in various judgments rendered by it. After considering the law as settled in State of Rajasthan and others Vs. M/s. Swaika Properties & Anr 1985 3 SCC 217; Oil and Natural Gas Commission Vs. Utpal Kumar Basu and others, 1994 (4) SCC 711; Kusum Ingots and Alloys Limited Vs. Union of India and another: 2004 (6) SCC 254; Union of India and others Vs. Adani Exports Limited and another, 2002 (1) SCC 567; Om Prakash Srivastava Vs. Union of India and others, 2006 (6) SCC 207; and Rajendra Chingaravelu Vs. R.K. Mishra, Additional Commissioner of Income Tax and others: (2010) 1 SCC 457; the Supreme Court held that in order to maintain a writ petition the petitioner has to establish that a legal right claimed by him has been infringed by the Respondents within the territorial limits of Courts' jurisdiction where he filed the petition. Since the appellant had been rendered permanently incapacitated to serve the Shipping Corporation of India as a Seaman and was discharged at Mumbai, only part of cause of action had arisen at Mumbai. Since the correspondence undertaken by the appellant was from his native place in Bihar for his various financial claims and since the appellant was suffering from serious heart muscle disease (Dilated Cardiomyopathy) and breathing problems which forced him to stay in native place and he had been making all correspondences with regard to disability compensation from his native place, a part of cause of action had arisen within the jurisdiction of Patna High Court.
17. The case of petitioner, however, seems to be different and distinguishable on facts as the petitioner is residing in Madhya Pradesh. The theft of his bag at Etawah Railway Station and his sending of petitions from Allahabad Railway Junction and Allahabad High Court Post Office would not mean that part of cause of action arose at Allahabad.
18. The case of Dinesh Chandra Gahtori (supra) had been relied upon by a Division Bench of this Court in Kailash Nath Tiwari Vs. Union of India reported in (2002) 1 ESC 366. But a Division Bench of this Court in another case of Lieutenant Colonel Saroj Vs. Union of India, 2003 (3) ESC 1419 had differed from the opinion so expressed. The two judgments of Coordinate Division Benches were referred by an Hon'ble Single Judge to a Larger Bench.
19. In Rajendra Kumar Mishra Vs. Union of India, 2005 (5) AWC 4542 (FB) the Larger Bench considered the judgment rendered in the case of Dinesh Chandra Gahtori (supra) and observed thus in para 9,10, 11 and 12:
"9. We have carefully perused the decisions in Dinesh Chandra Gahtori's case (supra). The entire judgment of the Supreme Court is as follows:
'By the Court-Leave granted.
The notice on the special leave petition stated that the matter might be disposed of at this stage by an order setting aside the order under challenge and restoring the writ petition to the file of the High Court to be heard and disposed of on merits.
The appellant filed a writ petition before the High Court at Allahabad to quash a communication sent to his wife which stated that the appellant had been tried by a Summary Court Martial and had been found guilty of using criminal force against his superior officer and awarded the sentence of dismissal from service. The High Court dismissed the writ petition at the admission stage by holding, 'In view of the fact that the Summary Court martial proceedings were conducted in the State of Punjab and orders were also passed in Punjab by the West Command, we are of the view that this Court has got no territorial jurisdiction to entertain this writ petition.' The writ petition was filed in 1992. The impugned order was passed in 1999.
This is a fact that the High Court should have taken to have consideration. More importantly, it should have taken into consideration fact that the Chief of Army Staff may be sued anywhere in the country. Placing reliance only on the cause of action as the High Court did, was not justified.
The appeal is allowed. The order under appeal is set aside. The writ petition (CMWP No. 39209/92) is restored to the file of the High Court to be heard and disposed of on merits expeditiously.
No order as to cost.'
10. In our opinion the observation in the aforesaid decision 'The Chief of Army Staff may be sued in any High Court in the Country' cannot be construed to mean that the Supreme Court has laid down any absolute proposition that it is open to the petitioner to file a writ petition in any High Court in India. Such an absolute proposition as canvassed by the learned Counsel for the petitioner may lead to conflicting decisions because different petitions can be filed in different High Courts by co-accused in the same case and conflicting decisions can be given.
11. It may be noted that the aforesaid observation in the three Judges decision of the Supreme Court in Dinesh Chandra Gahlori's case (supra) is only a laconic observation and it cannot be override Larger Bench decisions of the Supreme Court. (Emphasis Supplied)
12. In the present case it may be noted that the misconduct was committed at Calcutta and Summary Court Martial was also held at Calcutta. Thus the entire cause of action arose at Calcutta. We, therefore, fail to understand how a writ petition can be entertained at Allahabad High Court where no part of the cause of action had arisen."
20. The Full Bench of this Court considered the law as settled by Hon'ble Supreme Court in several cases vis-a-vis Board of Trustees for the Port of Calcutta Vs. Bombay Flour Mills Pvt. Ltd., AIR 1995 SC 577; Aligarh Muslim University Vs. Vinay Engineering Enterprises (P) Ltd., (1994) 4 SCC 710; Chand Koer Vs. Partab Singh, 15 Ind. Appeals 156; Union of India and Ors. Vs. Adani Exports Ltd. and Anr., AIR 2002 SC 126; Rajasthan High Court Advocates Association Vs. Union of India and Ors., AIR 2001 SC 416; Manju Bhatia and Anr. Vs. New Delhi Municipal Council and another, AIR 1998 SC 223; CBI Anti-corruption Branch Vs. Narayan Diwakar, AIR 1999 SC 2362; Navinchandra N. Majithia Vs. State of Maharashtra and others, AIR 2000 SC 2966; H.V. Jayaram Vs. Industrial Credit & Investment Corporation of India Ltd., AIR 2000 SC 579; and also English Case Law on the subject as to what can be considered to be a "cause of action" for example: Muhammad Hafiz Vs. Muhammad Zakariya, AIR 1922 PC 23; Read Vs. Brow, (1889) 22 QBD 128; and Mohammed Khalil Khan and others Vs. Mehbul Ah Mian and others, AIR 1949, PC 78 and has thereafter observed that three Judges Bench decision of the Supreme Court in Dinesh Chandra Gahtori's case (supra) cannot prevail over the Constitution Bench decision of the Supreme Court itself.
21. In para - 32 the Full Bench has observed that the Supreme Court in Union of India Vs. K.S. Subramanian, AIR 1976 SC 2433 has held as under:-
"The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by Larger Benches of this Court in preference to those expressed by earlier Benches of the Court. That is the practice followed by this Court itself. The practice has now crystallised into a rule of law declared by this Court."
22. And thereafter in paragraphs - 39 and 40 the Full Bench has observed thus:
" 39. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law.
40. For the reasons given above we are of the opinion that the Chief of Army Staff can only be sued either at Delhi where he is located or at a place where the cause of action, wholly or in part, arises."
23. Moreover, it is not the case of petitioner that the orders, by which he had been aggrieved, have been passed by the Chief of Army Staff. In view of the law settled by a Full Bench of this Court, having considered the judgments rendered by two Division Benches, this Court is bound to follow such law as declared by a Larger Bench.
24. Not only am I supported in the view taken by me with regard to the non-maintainability of the writ petition on the basis of law settled by the Larger Bench, but also there are several Division Benches of this Court which had taken a similar view earlier for example: Ex. No. 1387-5234-M Sepoy/D.B./M.T., Chabi Nath Rai Vs. Union of India and others, 1997 (1) UPLBEC 236 wherein it has been specifically observed that even if the order impugned has been communicated within the territorial jurisdiction of Allahabad High Court, mere communication will not confer jurisdiction on this Court to entertain the writ petition against the order of dismissal or order rejecting the representation.
25. Another Division Bench of this Court in Union of India and another Vs. M.A. Siddiqui and others, 2005 ALL.L.J. 2804 has also considered the judgment rendered by Hon'ble Supreme Court in the case of Dinesh Chandra Gahtori(supra) and the Full Bench decision of this Court in the case of Rajendra Kumar Mishra (supra). The Division Bench has observed that although the application was submitted to the authority at Gorakhpur in pursuance of the advertisement, the selection was held by the Railway Recruitment Board at Chandigarh. Since the selection was held by the Examining Body at Chandigarh, the Central Administrative Tribunal had no jurisdiction at Allahabad to entertain such Original Application challenging the selection. In the judgment rendered by the Hon'ble Supreme Court in the case of Oil and Natural Gas Commission Vs. Utpal Kumar Basu and others (supra) it has been clearly held that jurisdiction of a Court cannot be created on the ground that advertisement has been read at particular place.
26. This Court in another Division Bench judgment in Satyendra Kumar Pandey Vs. Union of India and others reported in 2012 (5): ADJ 45 (DB) has considered the case of appellant therein who was an applicant for the post of Sub Inspector in Central Industrial Security Force (CISF) in pursuance to an advertisement issued in the year 2001. Having been successful the appellant had been sent for training at National Industrial Security Academy at Hyderabad. Later on, it was discovered that an FIR under Sections 498-A read with Section 304 B IPC and Section 3/4 of Dowry Prohibition Act was lodged against him in 2008 wherein the appellant was charge-sheeted but later on acquitted. In view of said criminal case being registered, the Commandant of National Industrial Security Academy, Hyderabad had cancelled the offer of appointment made to the appellant. This Court considered the law as settled by the Hon'ble Supreme Court in Lieutenant Khajoor Singh Vs. Union of India (supra)and again by the Hon'ble Supreme Court in Natural Gas Commission Vs. Utpal Kumar Basu and others (supra); Chand Koer Vs. Partap Singh (supra); Union of India and others Vs. Adani Exports Ltd. (supra) and U.P. Rashtriya Chini Mill Adhikari Parishad Vs. State of U.P., AIR 1995 SC 2148 wherein it had been held by the Hon'ble Supreme Court that the expression "cause of action" had acquired a judicially settled meaning. In the restricted sense, cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action". It has to be left to be determined in each individual case as to where the cause of action arises.
27. The said Division Bench in Satyendra Kumar Pandey (supra) placed reliance upon the Full Bench decision of this Court in the case of Rajendra Kumar Mishra (supra) and quoted paragraph-40 thereof as under:-
"40. We may mention that a "cause of action" is the bundle of facts which, taken with the law applicable, gives the plaintiff a right to relief against the defendant. However, it must include some act done by the defendant, since in the absence of an act, no cause of action can possibly occur. [Vide Radhakrishnamurthy Vs. Chandrasekhara Rao, AIT 1966 AP 334; Ram Awalamb V. Jata Shankar, AIR 1969 All 526 (FB); and Salik Ram Adya Prasad V. Ram Lakhan and others, AIR 1973 All 107]."
28. In the aforesaid case of Satyendra Kumar Pandey (supra) the Division Bench also considered a judgment rendered in Navinchandra N. Majithia Vs. State of Maharashtra and others, (2007) 7 SCC 640 but distinguished the same on the ground that in said case part of cause of action had arisen within the State of Maharashtra and the Supreme Court had noticed that later on large number of events had taken place at Bombay in respect of the allegations contained in the FIR registered at Shillong and held that part of cause of action arose within the State of Maharashtra and therefore the writ petition was maintainable before the Bombay High Court. The Division Bench, therefore, observed that the judgment rendered in Navinchandra N. Majithia (supra) was on its own facts and had no relevance or application in the facts of the case before it.
29. The Hon'ble Supreme Court in the case of Dinesh Chandra Gahtori (supra) had not considered the three Judges decision in the case of Oil and Natural Gas Commission (supra) wherein the Supreme Court had given a detailed judgment after considering all the law as developed on the question of "cause of action" and "part of cause of action" and had quoted with approval from Mullah's Code of Civil Procedure, a well known commentary, in pargraph - 11 that the mere service of notice under Section 52(2) of the Act on the respondents at their registered office at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory, unless the service of such notice was an integral part of the cause of action. The Supreme Court in the aforesaid case had specifically considered and clarified that it had confined its judgment only to deciding whether on the averments made in the petition, any part of cause of action was shown to have arisen within the jurisdiction of Calcutta High Court and it had come to the conclusion that only part of cause of action had arisen within the jurisdiction of Calcutta High Court.
30. From a consideration of all the binding precedents as mentioned herein above, I am of the opinion that no part of cause of action has arisen for the petitioner within the territorial jurisdiction of Allahabad High Court. The writ petition is accordingly dismissed as not maintainable.
Order Date :- 07.09.2017 LBY