Madras High Court
A. Arivajagane vs Union Of India on 22 July, 2014
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar, K. Ravichandra Baabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-7-2014 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE K. RAVICHANDRA BAABU W.P.Nos.15600, 27036 of 2009 and 405 of 2010 W.P.No.15600 of 2009 A. Arivajagane ... Petitioner Vs. 1. Union of India, rep.by Deputy Inspector of General, Central Industrial Security Forces, (Ministry of Home Affairs), Durgapore Steel Plant, Durgapore. 2. Senior Commandant, CISF Unit, Durgapore Steel Plant, Durgapore ... Respondents Prayer: Writ petition filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records of the second respondent in No.V-15014/DSP/Disc/Maj/A.A/08/782 dated 31.8.2008 and in No.V-14013/DISC/DSP/Appeal/AA/08/1312 dated 22.12.2008 of the first respondent and to quash the same and consequently to direct the respondents to reinstate the petitioner into service with effect from 31.8.2008 with all other consequential benefits including arrears of wages continuity of service and seniority, etc. W.P.No.27036 of 2009 R. Kasivelu ... Petitioner Vs. 1. Union of India, rep.by its Secretary to Government, Ministry of Home Affairs, New Delhi. 2. The Director General, CISF Head Quarters, No.13, CGOS Complex, Lodhi road, New Delhi - 110 003. 3. The Inspector General, CISF Head Quarters North Eastern Zone, Premise No.553, East Kolkata Township, Kasba - Kolkata - 107, West Bengal - 700 107. 4. The Deputy Inspector General, CISF Unit ONGC Nazira, Nazira-Post, Sivasagar-District, Assam - 785 685 5. The Commandant, CISF Unit ONGC Nazira, Nazira-Post, Sivasagar-District, Assam - 785 685. ... Respondents Prayer: Writ petition filed under Article 226 of Constitution of India, praying for issuance of a writ of Certiorarified mandamus calling for the records relating to the order passed by the third respondent dated 26.10.2004 in his order No.V-15099/RK/L&D/NES/2004-3807 confirming the order of the 4th respondent dated 31.5.2004 in his appellate order No.V-11014/CISF/ONGC(N)/Apl-05/04-3029 and confirming the order passed by the 5th respondent dated 30.11.2007 in his final order No.V-15014/CISF/ONGC(N)/DISC/Maj.17/03/2004-1594 and to quash the same and to direct the respondents to take the petitioner into the strength of the CISF as Head Constable/GD with all monetary benefits and other service benefits. W.P.No.405 of 2010 P.K. Viswanathan, Ex-CISF HC/GD No.814462568 Plot No.7B, Pillaiyarkoil Street, IIT Colony Narayanapuram, Pallikaranai, Chennai - 600 100. ... Petitioner Vs. 1. Union of India, rep.by its Secretary to the Government, Department of Home Affairs, New Delhi. 2. The Director General, CISF Head Quarters, No.13, CGO COmplex, Lodhi Road, New Delhi - 110003. 3. The Inspector General, CISF Head Quarters North Eastern Zone, Premise No.553 East Kolkata Township, Kasba - Kolkata - 107, West Bengal - 700 107. 4. The Deputy Inspector General, CISF Unit, DSP Durgapur, Durgapur Steel Plant Durgapur, Durgapur-03, Burdwan-District, West Bengal - 713 213. 5. The Commandant, CISF Unit DSP Durgapur, Durgapur Steel Plant Durgapur, Durgapur-03, Burdwan District, West Bengal - 713 213. ... Respondents Prayer: Writ petition filed under Article 226 of Constitution of India, praying for issuance of a writ of Certiorarified Mandamus calling for record relating to the order passed by the third respondent dated 13.10.2008 in his order No.V-11014/NES/L&D/Rev-09/2008-6065 communicated by order No.V-11014/NES/L&D/Rev-09/2008-7022 dated 27.11.2008 confirming the order of the 4th respondent dated 29.3.2008 in his appellate order No.V-11014/CISF/DSP/Appeal/PKV/08-353 and confirming the order passed by the 5th respondent dated 30.11.2007 in his final order No.V-15014/CISF/DSP/Disc/Maj-31/PKV/05-07/3345 and to quash the same and to direct the respondents to take the petitioner into the strength of the CISF as Head Constable/GD with all monetary benefits and other service benefits. For Petitioner in W.P.15600/2009 : Mr.V.Ajaykumar For Petitioner in W.P.27036/2009 : Mr.M.Md.Ibrahim Ali & W.P.405/2010 For Respondents in W.P.15600/2009: Mr.C.K.M.Appaji For Respondents in W.P.27036/2009: Mr.M.Govindaraj For Respondents in W.P.405/2010 : Mr.T.Sellapandian COMMON ORDER
N. PAUL VASANTHKUMAR, J These writ petitions are filed challenging the orders of punishment imposed against each of the petitioners, which are confirmed by the Appellate Authority.
2. The case of the petitioner in W.P.No.15600 of 2009 is that he joined the services of CISF on 30.4.1996 as Constable at RTC Arakkonam and then he was posted at MPPCL, Nagaland and subsequently in December, 2007 he was transferred to Durgapur Steel Plant, Durgapur. While working so, on 26.2.2008 the petitioner was issued with a charge memo containing three charges and the petitioner submitted his explanation. It is the contention of the petitioner that a preliminary enquiry was conducted behind his back and based on the statements obtained in that enquiry, he was removed from service. The appeal filed by the petitioner before the appellate authority at Durgapur was rejected by order dated 22.12.2008.
3. Petitioner in W.P.No.27036 of 2009 joined the services of CISF on 13.9.1983 as Constable at Anna Nagar, Chennai and later he was promoted as Head Constable and in the year 2003 he was working at CISF Unit, ONGC, Assam. While working there, a charge memo was issued against the petitioner on 24.9.2003 alleging that while on duty on 1.9.2003 he involved in a scuffle with one Constable by name Jaibir Singh and assaulted him with the result, the said Constable sustained head injury and was admitted in ONGC Hospital, Sivasagar. Petitioner submitted written statement of defence on 13.10.2003 denying the said allegation and not satisfied with that, the Disciplinary Authority appointed Enquiry Officer by order dated 15.10.2003. The Enquiry Officer conducted enquiry at Nazira, Assam and submitted his report holding that the charge was proved. Based on the said enquiry report, the Disciplinary Authority, whose office is at Assam, passed the order of removal on 8.3.2004. The said order was challenged in appeal and the Appellate Authority, whose office situate in Assam, rejected the appeal by order dated 31.5.2004. The revision filed by the petitioner was also rejected by the third respondent, whose office is at Kolkatta, by order dated 10.7.2004. It is stated that since the orders of the Appellate Authority and Revisional Authority were served to the petitioner in Tamilnadu, this Court has got jurisdiction and hence he filed the writ petition before this Court.
4. Petitioner in W.P.No.405 of 2010 joined the service of CISF as Constable on 11.12.1981 and in the year 1997 he was promoted as Head Constable. While he was serving at CISF Unit, Durgapur Steel Plant, he was issued with a charge memo under Rule 36 of CISF Rules for negligence and dereliction of duty. Petitioner submitted his statement of defence on 18.11.2005 denying the allegation. Not satisfied with that the Disciplinary Authority appointed Enquiry Officer by order dated 21.11.2005 and the Enquiry Officer after concluding the enquiry, which was conducted at Durgapur, submitted his report on 22.10.2007. Based on the said report, the Disciplinary Authority at Durgapur passed the order of removal from service by order dated 30.11.2007. Aggrieved by the said order, petitioner filed appeal and the appellate authority, whose office situate at Durgapur, dismissed the appeal on 29.3.2008. Petitioner further filed revision under section 9 of the CISF Act, 1968 and the revisional authority, who is at Kolkatta, rejected the revision by order dated 13.10.2008. Hence the petitioner has filed this writ petition before this Court on the ground that the orders were served at his native place, which is within the territorial jurisdiction of this Court.
5. Heard the learned counsels for the respective petitioner as well as learned counsels for respective respondents.
6. The maintainability of the writ petitions before this Court, particularly lack of jurisdiction (territorial), is raised as preliminary issue by the learned counsel for the official respondents by contending that the petitioner in W.P.No.405 of 2010 was a member of the Armed Forces of the Unit (CISF) and entire cause of action took place in the State of West Bengal as the petitioner worked at Durgapur, departmental enquiry was conducted at Durgapur, Disciplinary Authority imposed punishment by order dated 30.11.2007 at Durgapur, appellate authority disposed of appeal on 29.3.2008 at Durgapur, and therefore no cause of action has arisen within the territorial jurisdiction of this Court and the High Court at Calcutta alone has got jurisdiction to decide the validity of the order of punishment. Similar is the facts in other cases. In respect of the said contention, learned counsel for the respondents relied on the Full Bench decisions reported in 2007 (5) CTC 305 (Sanjos Jewellers v. Syndicate Bank), 2012 (4) CTC 113 (B. Stalin v. The Registrar, Supreme Court of India); Division Bench decisions reported in 2013 (2) CWC 746 (The Registrar, Sri Chandrasekarendry Saraswati Viswa Maha Vidyalaya v. S. Girija) and (2013) 8 MLJ 527 (C.Ramesh v. Director General of Police) and contended that merely because the order of punishment or the order of the appellate authority was communicated to the petitioner, who is residing in Tamil Nadu, that itself will not give cause of action to entertain the writ petition by this High Court.
7. The learned counsels for the writ petitioners on the other hand submitted that the order of punishment having been served in a place where this Court has got jurisdiction, the writ petitions are maintainable, as part of the cause of action has arisen within the jurisdiction of this Court and also relied on the judgments of the Division Bench of this Court reported in 2006 (1) CTC 732 (A. Madurai Veeran v. Union of India) and in W.A.No.1195 to 1197 and 1200 to 1202 of 2011 dated 18.12.2012 (D.P.Sekar v. Indian Institute of Architects).
8. We have considered the rival submissions made by the learned counsels for the petitioners on the preliminary issue raised by the learned counsels for the respondents in each of the writ petitions.
9. The facts narrated above clearly reveal that except service of the orders of punishment, no other incident has taken place within the territorial jurisdiction of this Court. Article 226(2) is the relevant constitutional provision, which deals with cause of action/part of the cause of action, which give jurisdiction to entertain writ petition under Article 226 of the Constitution of India.
"Art.226(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."
10. Whether the place where the petitioner resides, or the place where service of the order took place, will confer jurisdiction to challenge the order was already considered by the Supreme Court in the decision reported in (2007) 11 SCC 335 (Alchemist Ltd. v. State Bank of Sikkim). In the said case, not entertaining of the writ petition by the Punjab & Haryana High Court was upheld by the Supreme Court as the respondent in the said writ petition viz., State Bank of India, Sikkim, was having its head office at Gangtok. Several proposals were received from various entities throughout the country and the bank informed the appellant company, who was at Chandigarh, that its proposal was accepted in principle, subject to consideration and approval of the Government of Sikkim. The appellant Company received a communication at Chandigarh, not approving the proposal and sought to withdraw the proposal. The said action was challenged before the Punjab & Haryana High Court in the writ petition and the same was dismissed on the ground that the Punjab & Haryana High Court did not have territorial jurisdiction to entertain the writ petition as no cause of action has arisen within the territorial jurisdiction of that Court. The said order was challenged before the Supreme Court contending that the appellant Company has its registered and Corporate Office at Chandigarh; it carries on business at Chandigarh; the acceptance of offer of the appellant Company was communicated at Chandigarh; the part-performance of the contract viz., 4.50 crores had been deposited by the Company in a fixed deposit at Chandigarh; and the revocation order was received at Chandigarh office, among other things. The respondent State Bank of India, Sikkim, resisted the case by contending that the respondent's Corporate Office is at Gangtok, Sikkim; offers were called for from various parties at Gangtok; the offers were scrutinised and decision to accept the offer was taken at Gangtok; the decision not to approve the proposal was taken at Gangtok; the resolution to withdraw the letter of acceptance was passed at Gangtok; and a communication was despatched to the appellant Company at Chandigarh at Gangtok. The Supreme Court considered the provision contained in Article 226(1)(a) of the Constitution of India (which was subsequently renumbered as clause (2) of Article 226 by 42nd Amendment) and answered the said issue in paragraphs 19 to 24 which read thus, "19. The question for our consideration is as to whether the assertion of the appellant is well founded that a part of cause of action can be said to have arisen within the territorial jurisdiction of the High Court of Punjab and Haryana. Whereas, the appellant Company submits that a part of cause of action had arisen within the territorial jurisdiction of that Court, the respondents contend otherwise.
20. It may be stated that the expression cause of action has neither been defined in the Constitution nor in the Code of Civil Procedure, 1908. It may, however, be described as a bundle of essential facts necessary for the plaintiff to prove before he can succeed. Failure to prove such facts would give the defendant a right to judgment in his favour. Cause of action thus gives occasion for and forms the foundation of the suit.
21. The classic definition of the expression cause of action is found in Cooke v. Gill (((1873) 8 CP 107 : 42 LJCP 98) wherein Lord Brett observed:
Cause of action 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.
22. For every action, there has to be a cause of action. If there is no cause of action, the plaint or petition has to be dismissed.
23. Mr Soli J. Sorabjee, Senior Advocate appearing for the appellant Company placed strong reliance on A.B.C. Laminart (P) Ltd. v. A.P. Agencies ((1989) 2 SCC 163 : AIR 1989 SC 1239) and submitted that the High Court had committed an error of law and of jurisdiction in holding that no part of cause of action could be said to have arisen within the territorial jurisdiction of the High Court of Punjab and Haryana. He particularly referred to the following observations: (SCC p. 170, para 12) 12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.
24. In our opinion, the High Court was wholly justified in upholding the preliminary objection raised by the respondents and in dismissing the petition on the ground of want of territorial jurisdiction."
In paragraphs 37 to 39, the Supreme Court further held as follows:
"37. From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether 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 the court, the court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a part of cause of action, nothing less than that.
38. In the present case, the facts which have been pleaded by the appellant Company, in our judgment, cannot 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. The High Court, in our opinion, therefore, was not wrong in dismissing the petition.
39. For the foregoing reasons, we see no infirmity in the order passed by the High Court dismissing the petition on the ground of want of territorial jurisdiction. The appeal, therefore, deserves to be dismissed and is accordingly dismissed. In the facts and circumstances of the case, however, we leave the parties to bear their own costs." (Emphasis Supplied)
11. The Full Bench of this Court, of which one of us ( NPVJ) was a member of the Bench, in the decision reported in 2007 (5) CTC 305 (Sanjos Jewellers v. Syndicate Bank) considered the issue relating to territorial jurisdiction, wherein a seven Judges Bench decision of the Hon'ble Supreme Court reported in Manu/SC/0039/1960 (Khajoor Singh v. Union of India) was followed and held that it is not permissible to read in Article 226, the residence or location of the person affected by the order passed, in order to determine the jurisdiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court's jurisdiction. In the said Full Bench decision the appellate authority, who passed the final order, namely DRAT, having been located at Chennai, this Court on facts held that this Court has got jurisdiction. After giving such finding, the Full Bench dismissed the writ petition taking note of the fact that the petitioner therein earlier moved the Andhra Pradesh High Court for relief and the attempt on the part of the petitioner therein was to be treated as forum shopping.
12. The said principle was followed in the Division Bench judgment of this Court reported in 2013 (8) MLJ 527 (C.Ramesh v. Director General of Police). In the said case even though the petitioner, who was residing within the jurisdiction of Madurai Bench sent a representation to DGP, who is at Chennai, who having not taken any steps to look into the complaint, was held not sufficient to give territorial jurisdiction.
13. In the decision reported in 2013 (2) CWC 746 (The Registrar, Sri Chandrasekarendra Saraswati Viswa Maha Vidyalaya v. S.Girija) also the Division Bench held that merely because the order was served to the petitioner, who is residing within the territorial jurisdiction of Madurai Bench will not give jurisdiction to entertain the writ petition.
14. The decision relied on by the learned counsel for the petitioners i.e, 2006 (1) CTC 732 (A. Madurai Veeran v. Union of India) was rendered prior to the Supreme Court decision. The unreported judgment in W.A.No.1195 to 1197 etc., dated 18.12.2012 was rendered without reference to the judgment of the Supreme Court reported in (2007) 11 SCC 335 (supra). Therefore the said judgments cannot be applied to the facts of this case in the light of binding precedent rendered by the Supreme Court and the Full Bench judgment of this Court cited supra.
15. The Constitution Bench of the Supreme Court in the decision reported in (1994) 4 SCC 711 (ONGC v. Utpal Kumar Basu) held that the High Court should not transgress into the jurisdiction of other High Court merely on the ground of some insignificant event took place within its territorial limits.
16. In these cases, no material of integral or essential part of cause of action had taken place within the territorial jurisdiction of this High Court. Hence, we are of the view that the preliminary objection raised by the respondents in these cases regarding maintainability of the writ petitions before this Court on the ground of want of territorial jurisdiction is sustainable. The writ petitions are disposed of granting liberty to the petitioners to approach the concerned High Court for redressal of their grievance within four weeks. No costs.
Index :Yes/No (N.P.V.,J) (K.R.C.B.,J) Internet :Yes/No 22-7-2014 Note to Registry: Issue copy today itself vr N.PAUL VASANTHAKUMAR, J AND K. RAVICHANDRA BAABU, J vr Pre-Delivery Common Order in W.P.Nos.15600, 27036/2009 & 405/2010 22-7-2014