Jammu & Kashmir High Court - Srinagar Bench
Dhiraj Kumar Singh vs Union Of India And Another on 14 September, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
1
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP no.2163/2015
Date of order: 14.09.2017
Dhiraj Kumar Singh
Versus
Union of India and another
Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge
Appearing Counsel:
For Petitioner(s): Mr A. M. Dar, Advocate
For Respondent(s): Mr Tahir Majid Shamsi, ASGI
Whether approved for reporting? Yes/No
1. Petitioner, working as Deputy Commandant in Central Reserve Police
Force (CRPF), aggrieved of Order no.D.IX-17/2004-CRC dated 19th
August 2013, imposing punishments, by reducing him to a lower stage
in the time scale of pay for a period of three years; stopping increments
of pay during the period of such reduction; on the expiry of such period,
postponing future increments of his pay; and accordingly reducing his
pay from Rs.28,420/- plus Grade Pay 6600/- to Rs.27,400/- plus Grade
Pay Rs.6600/- for a period of three years i.e. from 01.09.2013 to
31.08.2016 in the pay band of 15,600-39,100 (PB-3), filed writ
petition, registered as SWP no.2117/2013, which was disposed of vide
judgement and order dated 19th March 2015; operative portion whereof
is:
"For the reasons discussed, Writ Petition is allowed and the order
no.D.IX-17/2004-CRC dated 19.08.2013, is quashed to the extent it
imposes major penalty on the petitioner. Resultantly, respondents
shall supply copy of UPSC advice to petitioner, enabling him to file
his response and make an effort to convince the respondents that
penalty suggested by UPSC would be unwarranted in the facts and
circumstances of the case."
2. By above judgement, the Order no.D.IX-17/2004-CRC dated 19th
August 2013, imposing major penalty on petitioner, was quashed and
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in consequence, respondents directed to supply copy of UPSC advice
to petitioner, enabling him to file his Response thereto. After two
months of passing of judgement and order dated 19 th March 2015 in
SWP no.2117/2013, petitioner filed Contempt No.288/2015. However,
this Court, vide order dated 14th August 2015, held contempt petition
not maintainable, with following observations:
"Petition is not maintainable inasmuch as order imposing penalty
stands quashed. In any case respondents are not interested in
proceeding against the petitioner, petitioner need not seek directions
to respondents to proceed against him, and that too in a contempt
petition."
3. Respondents issued Order no.D-IX-17-2004-CRC dated 31st August
2015. After detailing out Articles of Charge and institution of writ
petition by petitioner, they decided to hold enquiry against him from
the stage of serving a copy of advice tendered by UPSC vide letter
no.F.3/105/2012 dated 5th October 2012, as ordered by this Court vide
judgement dated 19th March 2015. It is this order, of which petitioner
feels aggrieved. Petitioner has filed writ petition on hand, on 3rd
October 2015, with following relief that he implored for to be passed
in his favour and against respondents:
a) Writ of Certiorari, quashing impugned condition to hold further
enquiry against the petitioner, as incorporated in concluding para
8 sub clause (ii) of the impugned order no.D.IX/2004-CRC dated
31.08.2015 issued by respondents (as contained in Annexure C)
may be quashed;
b) Writ of Mandamus, commanding the respondents to implement
the judgment dated 19.3.2015 passed in SWP No.2117/13 in letter
and spirit that would mean to restore all the service benefits
including grant of promotion to the next higher grade and post
retrospectively and determine and maintain the seniority of the
petitioner at an appropriate place under the mandate of law."
4. On presentation of instant writ petition, threshold ad interim order
dated 5th October 2015 this Court passed, staying impugned Order
no.D-IX-17-2004-CRC dated 31st August 2015, to the extent of holding
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enquiry. However, petitioner was asked to file response within 10 days
and respondents, on its receipt, were required to consider the same.
5. Respondents preferred an application (MP no.01/2016), seeking
modification of aforesaid Order dated 5th October 2015. Application,
with consensus of learned counsel for parties, was allowed, modifying
ad interim order dated 5th October 2015, in the following manner:
"With the consensus of learned counsel for the parties interim
order dated 05.10.2015 is modified.
The enquiry shall be held in terms of the order impugned.
However, the same shall be subject to outcome of the writ
petition. The petitioner shall be heard in accordance with
judgment and order dated 19.03.2015 passed in SWP
no.2117/2013."
6. It appears that petitioner submitted his reply/ representation dated 10th
October 2015, to UPSC advice served on him on 11th September 2015,
and participated in the inquiry. Disciplinary Authority, on examining
petitioner's submissions, made certain recommendations, which was
followed by Order no.D.IX-17/2004-CRC dated 18th April 2016. In
view of this development, petitioner amendment in writ petition sought
for by petitioner was allowed vide order dated 27th June 2016 and
amended writ petition taken on record. Respondents were directed to
file Reply to amended writ petition. On 2nd May 2017, writ petition was
admitted. Respondents were directed to file counter affidavit that they
have filed. Petitioner, on the edifice of case set up, seeks following
relief in amended writ petition:
a) Writ of Certiorari, quashing impugned condition to hold further
enquiry against petitioner as incorporated in concluding para 8
sub-clause (ii) of the impugned order no.D.IX-17/2004-CRC
dated 31st August 2015 issued by respondents;
b) Writ of Certiorari, quashing impugned order no.D.IX-17-2004-
CRC dated 18th April 2016;
c) Writ of Mandamus, commanding respondents to implement
judgement dated 19th March 2015 passed in SWP no.2117/2013 in
letter and spirit that would mean to restore all the benefits including
grant of promotion to the next higher grade and post retrospectively
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and determine and maintain the seniority of the petitioner at an
appropriate place under the mandate of law.
7. Respondents, in their counter affidavit, insist that petitioner has, in
essence, challenged impugned Order dated 18th April 2016 at a time
when he was not posted at Srinagar and said order has been passed by
competent authority at Delhi. Petitioner is stated to be presently posted
in 148 Battalion, which is at present located at Chandauli, U.P. and
therefore, no cause of action has arisen within territorial jurisdiction of
this Court, in that, the same being new cause of action and petitioner
has remedy to challenge above-said order before the court of competent
jurisdiction and not before this Court as same does not conform to
stipulations of Article 226. Respondents maintain that this Court lacks
territorial jurisdiction to adjudicate upon the matter. Writ petition
(SWP no.2117/2013) against order dated 19th August 2013, as
respondents contend, filed by petitioner, was disposed of vide order
dated 19th March 2015, quashing order dated 19th August 2013 with
liberty to respondents to furnish copy of UPSC opinion to petitioner,
so that he could make representation against order of penalty and
thereafter respondents issued a well-reasoned Order on 18th April 2016,
after following the mandate of law as enumerated in Central
Classification Control Appeal Rules as also followed the direction of
this Court in letter and spirit. Impugned order, according to
respondents, has been passed by competent authority in accordance
with law and does not call for interference. Petitioner's writ petition
(SWP no.2117/2013) is claimed to have been allowed to limited extent
of directing respondents to furnish UPSC opinion to petitioner so that
he could make a representation against order of penalty. It is insisted
that except for pleading that the proceedings initiated against petitioner
were set aside in SWP no.2117/2013, which assertion is wrong on facts
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and law, petitioner has not pointed out lawful and valid reasons as to
why proceedings, initiated against him, are bad in law and facts.
Allegations, levelled against petitioner, as averred by respondents,
have been proved in compliance to due process of law and respondents
are duty bound in law to act against a delinquent officer in terms of law
and right of respondents cannot be scuttled.
8. I have heard learned counsel for parties and considered the matter.
9. By judgement dated 19th March 2015 in SWP no.2117/2015 titled
Dhiraj Kumar Singh v. Union of India and others, after quashing
impugned order therein, this Court directed respondents to supply copy
of UPSC advice to petitioner, enabling him to file his Response and
making an effort to convince respondents that penalty suggested by
UPSC would be unwarranted in the facts and circumstances of the case.
In compliance to aforesaid judgement dated 19th March 2015, the Order
bearing no.D.IX-17/2004-CRC dated 31st August 2015 was passed for
conducting further enquiry under the provision of Rule 15 (1) of CCS
(CCA) Rules, 1965, against petitioner from the stage of serving a copy
of advice tendered by UPSC vide letter no.F.3/105/2012-SI dated 5th
October 2012. Petitioner, presently posted in 148 Battalion, which is
located at Chandauli, U.P., submitted his representation dated 10 th
October 2015, against UPSC advice and participated in inquiry. The
representation, so submitted by petitioner, was examined by
respondents. It was observed that petitioner failed to bring any new fact
or cogent reason, warranting reconsideration of UPSC advice. This was
followed by Order dated 18th April 2016, imposing penalties mentioned
therein, which is impugned in this petition.
10. Main objection of respondents in opposition to writ petition on hand is
that no part of cause of action has arisen within territorial jurisdiction
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of this Court and therefore, this writ petition cannot be entertained by
this Court. In support of the said primary objection, raised by
respondents, it was pointed out by learned ASGI that what is
challenged in present writ petition is the order, bearing no.D.IX-17-
2004-CRC dated 18th April 2016, awarding certain punishment on
petitioner, which has been passed after conducting inquiry into the
matter at Delhi, in which petitioner partook and more particularly
petitioner is not presently posted in Srinagar, but in U.P. According to
learned ASGI, petitioner could have filed writ petition or any other
appropriate motion against Order no.D.IX-17-2004-CRC dated 18th
April 2016, before the court at Delhi, or at the most before the court in
U.P.
11. Learned ASGI ingeminates that earlier Order no.D-IX-17-2004-CRC
dated 31st August 2015, for holding enquiry against petitioner from the
stage of serving a copy of advice tendered by UPSC vide letter
no.F.3/105/2012 dated 5th October 2012, as ordered by this Court vide
judgement dated 19th March 2015, was passed at Delhi. Thereafter,
though petitioner initially, on presentation of writ petition, earned
Order dated 5th October 2015, staying order dated 19th March 2015, yet
the said ad interim order was, with the consensus of learned counsel
for parties, modified and enquiry permitted to be held in terms of
impugned order bearing no.D-IX-17-2004-CRC dated 31st August
2015 at Delhi. Petitioner participated in the said inquiry, which was
conducted at Delhi and he submitted his reply/ representation on UPSC
advice and Disciplinary Authority, on examining petitioner's
submissions, made certain recommendations, which was followed by
Order no.D.IX-17/2004-CRC dated 18th April 2016, imposing certain
penalties on petitioner.
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12. It may not be out of place to mention here that the moment petitioner
participated in the inquiry, the relief (a) implored for by him in present
writ petition, to quash condition to hold further enquiry against him as
incorporated in concluding para 8 sub-clause (ii) of impugned order
no.IX-17/2004-CRC dated 31st August 2015, has become redundant.
Writ petition, therefore, to that extent (i.e. relief (a) beseeched for by
petitioner in writ petition) has become infructuous the moment enquiry
was initiated, in which petitioner, out of his own volition, participated.
13. Now, thereafter, are second and third relief(s) sought for by petitioner
in writ petition, which are, Writ of Certiorari, quashing impugned
order no.D.IX-17-2004-CRC dated 18th April 2016 and directing
respondents to restore all benefits including promotion to next higher
grade and post retrospectively and determine his seniority at
appropriate place. The said impugned order bearing no.D.IX-17-2004-
CRC dated 18th April 2016, has been passed only after holding enquiry,
in which petitioner took part. The enquiry was conducted at Delhi.
Petitioner participated in it. He is presently posted in U.P. (Uttar
Pradesh). Fresh cause of action, that according to petitioner, has arisen
for him to throw challenge to Order no.D.IX-17-2004-CRC dated 18th
April 2016, imposing certain penalties on him, has, therefore, not
arisen within territorial jurisdiction of this Court. The plea, that is
taken, is that this Court shall have extra territorial jurisdiction to
entertain instant petition in view of provisions of Article 226 (2) of the
Constitution of India. In my considered opinion, the aforesaid
submission of learned counsel appearing for petitioner is misconceived
and is required to be rejected outrightly.
14. It is pertinent to mention here that 'cause of action' determines the
Court of competent jurisdiction when a party invokes extraordinary
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jurisdiction of the Court under Article 226 of the Constitution of India.
In discern contradistinction to the provisions of Section 16 to 20 of
Code of Civil Procedure, Article 226 (2) restricts the principle of
territorial jurisdiction only to 'cause of action'. The expression would
take in its ambit partial or entire 'cause of action'. Part of cause of
action is again a term of wide magnitude and thus, has to be construed
liberally. However, once element of 'cause of action'; or any part
thereof in its minutest form is absent, the court may not have territorial
jurisdiction, only on the basis of the residence/location of the party.
The provisions of Section 20 CPC provide that subject to limitation
contained in the preceding Sections, a suit could be instituted in a court
within the local limits of whose jurisdiction, defendant or each of
defendants voluntarily reside(s) or where 'cause of action' wholly or in
part arises. Thus, there are two factors, which independent of each
other, can grant jurisdiction for a party to institute a suit in the court of
competent jurisdiction. However, these provisions would not be
applicable to writ jurisdiction stricto senso. It is a settled principle of
law that provisions of Civil Procedure Code would not apply in full
vigour or strictly to writ proceedings. They are not applicable of their
own force to such proceedings, but nonetheless writ proceedings could
be governed by principles analogous to those contained in the Code,
particularly when they are not inconsistent with writ rules or the
Constitutional mandate contained in Article 226. Unlike provisions of
Section 20 CPC, which specifies different grounds for vesting
jurisdiction in the court, Article 226 contemplates location of
authorities and arising of 'cause of action', partly or wholly within
territorial jurisdiction of that court. By introduction of Article 226 (2),
great emphasis has been laid on the concept of 'cause of action'. Even
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this statement is further clarified by use of non-obstante clause that it
would be so, notwithstanding the fact that seat of such Government or
authority or residence of such person is not within those territories.
This manifestly shows that residence of the party is not really a relevant
consideration for determining jurisdiction of a court under these
provisions. In view of this constitutional mandate, the provisions of the
High Court Rules and Orders relating to exercise of writ jurisdiction
have to be read ejusdem generis to the Constitutional provisions.
15. To appropriately discuss the rationale of principle of 'cause of action',
giving jurisdiction to a court, it will be useful to refer to the provisions
of Article 226 of the Constitution, which reads:
"226. Power of High Courts to issue certain writs. --
(1) Notwithstanding anything in Article 31[2], every High Court shall
have power, throughout the territories in relation to which it exercises
jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.
(2) The power conferred by Clause (1) to issue directions, orders or
writs to any Government, authority or person may also be exercised
by any High Court exercising jurisdiction in relation to the territories
within which the cause of action, wholly or in part, arises for the
exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within
those territories.
(3) Where any party against whom an interim order, whether by way
of injunction or stay or in any other manner, is made on, or in any
proceedings relating to, a petition under Clause (1), without:
(a) furnishing to such party copies of such petition and all documents
in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an
application to the High Court for the vacation of such order and
furnishes a copy of such application to the party in whose favour such
order has been made or the counsel for 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
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application is not so disposed of, the interim order shall, on the expiry
of that period, or, as the case may be, the expiry of the said next day,
stand vacated.
(4) The power conferred on a High Court by this article shall not be
in derogation of the power conferred on the Supreme Court by Clause
(2) of Article 32."
16. The provisions of Article 226 of the Constitution clearly exhibit intent
of framers of the Constitution to grant territorial jurisdiction to the
court in whose jurisdiction entire or part of 'cause of action' has arisen.
The purpose of restricting jurisdiction of the court and relating it
directly to 'cause of action', has also nexus to expeditious disposal of
writ petition. An aggrieved person should approach the court of
competent jurisdiction, and not file writ petitions in the court in whose
jurisdiction no 'cause of action' or part thereof has arisen, merely on
the ground that respondents or petitioners were residents of an area
falling under jurisdiction of that court. Article 226 (3) of the
Constitution, while furthering cause of expeditious disposal and
prevention of unnecessary prolongation of interim orders in the form
of injunction or stay, makes it obligatory for the Courts to dispose of
such applications within specified time or within such time as the
Courts may consider proper for reasons to be stated. Expeditious
disposal has relevancy to the administration of justice and, therefore, is
essential to the issue of jurisdiction as well. Normally wherever 'cause
of action' or part thereof arises, authorities would be in power and
possession of relevant documents/record, which can without any delay
be produced before the courts to help expeditious disposal. These are
procedural provisions, but are mandatory in their form as they alone
determine the court of competent jurisdiction. The inquiry, in the
present case, had been conducted at Delhi. Petitioner is posted in the
State of Uttar Pradesh (U.P.). He partook in the inquiry at Delhi. Thus,
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it would have been apt for petitioner to, instead of knocking at portals
of this Court, approach appropriate Court, in whose jurisdiction
enquiry was conducted and petitioner participated therein, more
particularly where the relevant documents/record relating to said
inquiry can be produced without any delay to help expeditious disposal
of the case. This, though being procedural provision, but is mandatory
in its form as it alone determines the court of competent jurisdiction
and for that reason, this Court is not appropriate forum for petitioner to
knock at its portals for remedying his gravamen as groused by him in
writ petition on hand.
17. It may be mentioned here that vesting jurisdiction in a court in whose
jurisdiction no 'cause of action' has arisen, would amount to defeating
the very purpose of the Constitutional provisions. In a vast country like
ours, the division of jurisdiction would be necessary, which in turn
would link itself to the rationale behind these Constitutional provisions.
Normally, provisions relating to jurisdiction, should be construed
strictly as they vest or divest jurisdiction in the Court. To vest
jurisdiction in a Court where the law does not intend, would be
impermissible as jurisdiction in a Court can neither be vested by
consent of parties nor by implication. Jurisdiction is conferred by a
Statute. It is already pointed out that the expression 'cause of action' or
any part thereof appearing in Article 226 (2) of the Constitution, is of
significant meaning and consequences. The question as to whether the
Court has territorial jurisdiction to entertain a writ petition, must be
arrived at on the basis of averments made in petition, the truth or
otherwise thereof being immaterial. In order to confer jurisdiction on a
High Court to entertain a writ petition, it must disclose that the integral
facts pleaded in support of 'cause of action', do constitute a cause, so
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as to empower the Court to decide the dispute and that the entire or a
part of it arose within its jurisdiction. The facts pleaded in writ petition
must have a nexus on the basis whereof a payer can be granted. Those
facts, having nothing to do with the prayer made therein, cannot be said
to give rise to a 'cause of action', which would confer jurisdiction on
the Court. Even if a small fraction of 'cause of action', accrues within
jurisdiction of the Court, the Court will have jurisdiction in the matter.
However, the same by itself may not be considered to be a
determinative factor compelling the High Court to decide the matter on
merits and even in appropriate cases, the Court can refuse to exercise
its discretionary jurisdiction by invoking the doctrine of forum
convenience.
18. To further analyse this expression in proper concept of law, I may refer
to some judgments of the Supreme Court that have explained concept
of 'cause of action'. In the case of Oil Natural Gas Commission v.
Utpal Kumar Basu & ors., 1994 (4) SCC 711, the Supreme Court has
held:
"Therefore, broadly speaking, NICCO claims that a part of the cause
of action arose within the jurisdiction of the advertisement in Calcutta
and made representations demanding justice from Calcutta on
learning about the rejection of its offer. The advertisements itself
mentioned that the tenders should be submitted at New Delhi and that
a final decision whether or not to award the contract to the tenderer
would be taken at New Delhi. Of course, the execution of the contract
work was to be carried out at Hazira in Gujarat. Therefore, merely
because it read the advertisement at Calcutta and submitted the offer
from Calcutta and made representations from Calcutta would not, in
our opinion, constitute facts forming an integral part of the cause of
action. So also the mere fact that it sent fax messages from Calcutta
and received a reply thereto at Calcutta would not constitute an
integral part of the cause of action. Besides the fax message of
January 15, 1993, cannot be construed as conveying rejections of the
offer as that fact occurred on January 27, 1993. We are, therefore, of
the opinion that even if the averments in the writ petition are taken as
true, it cannot be said that a part of the cause of action arose within
the jurisdiction of the Calcutta High Court....
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The submission of the learned Counsel for NICCO based on Section
21 of the Code of Civil Procedure that even if this Court comes to the
conclusion that the High Court of Calcutta had no jurisdiction, this
Court should, in the absence of proof of prejudice, refuse to interfere
with the decision of the High Court unless it is otherwise found to be
erroneous. While the spirit of Section 21 of the Code of Civil
Procedure may support such a submission, we are afraid, the
discretion cannot be used in favor of a party which deliberately
invokes the jurisdiction of a Court which has no jurisdiction
whatsoever for ulterior motives. That would only encourage such type
of litigation. The object underlying the provisions in Section 21 is not
to encourage such litigants but to avoid harassment to litigants who
had bona fide and in good faith commenced proceedings in a court
which is later found to be wanting in jurisdiction. In the instant case,
we are convinced, beyond doubt, that NICCO did not act bona fide in
moving the Calcutta High Court and, therefore, the submission based
on Section 21 must fail."
19.In the case of Union of India v. Adani Exports 2002(1) SCC 567, the
Supreme Court while explaining the principle laid down by that Court
in the case of Union of India & ors v. Oswal Woollen Mills 1984 (2)
SCC 646, explained the scope of territorial jurisdiction and held:
"We are unable to accept this finding of the High Court. The view of
the High Court that this Court in the case of Oswal Woollen (supra)
had held that the existence of the registered office of a Company
would ipso facto give a cause of action to the High Court within
whose jurisdiction the registered office of such a Company is situated,
is not correct. As a matter of fact, in the case of Oswal Woollen
(supra), the question of territorial jurisdiction in the sense with which
we are concerned now, did not arise at all. In that case, the
observations of the Court were as follows:
Having regard to the fact that the registered office of the Company is
at Ludhiana and the principal respondents against whom the primary
relief is sought are at New Delhi, one would have expected the writ
petition to be filed either in the High Court of Punjab and Haryana or
in the Delhi High Court. The writ petitioners, however, have chosen
the Calcutta High Court as the forum perhaps because one of the
interlocutory relief which is sought is in respect of a consignment of
beef tallow which has arrived at the Calcutta Port....We do not desire
to probe further into the question whether the writ petition was filed
by design or accident in the Calcutta High Court when the office of
the Company is in the State of Punjab and all the principal
respondents are in Delhi."
20.Article 226 (2) of the Constitution of India, which speaks of the
territorial jurisdiction of the High Court, provides that the power
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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 territories, within which
'cause of action', wholly or in part, arises for exercise of such power,
notwithstanding that the seat of such Government or authority or
residence of such person is not within those territories. It is clear from
the said Constitutional provision that a High Court can exercise
jurisdiction in relation to territories within which 'cause of action',
wholly or in part, arises. In this regard, it would be suffice to refer to
the observations made by the Supreme Court in Utpal Kumar Basu's
case (supra), wherein it was held:
"Under Article 226 a High Court can exercise the power to issue
directions, orders or writs for the enforcement of any of the
fundamental rights conferred by Part III of the Constitution or for
any other purpose if the cause of action, wholly or in part, had arisen
within the territories in relation to which it exercises jurisdiction,
notwithstanding that the seat of the Government or authority or the
residence of the person against whom the direction, order or writ is
issued is not within the said territories. The expression cause of
action means that bundle of facts which the petitioner must prove,
if traversed, to entitle him to a judgment in his favour by the Court.
Therefore, in determining the objection of lack of territorial
jurisdiction the court must take all the facts pleaded in support of
the cause of action into consideration albeit without embarking
upon an enquiry as to the correctness or otherwise of the said facts.
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."
21.It is seen from above that in order to confer jurisdiction on a High Court
to entertain a writ petition, the High Court must be satisfied from entire
facts pleaded in support of '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. It is clear from the
above referred decisions that each and every fact pleaded by the
petitioner, in the present case, does not ipso facto lead to the conclusion
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that those facts give rise to 'cause of action' within territorial
jurisdiction of this Court, in that, those facts pleaded are such, which
have no nexus or relevance with the lis that is involved in the case.
Facts, which have no bearing with the lis or the dispute involved in the
case, do not give rise to a cause of action, so as to confer territorial jurisdiction on the court. If this principle is applied to the given facts and circumstances of the present case, then I see that none of the facts pleaded in the petition fall into the category of bundle of facts, which would constitute a 'cause of action', giving rise to a dispute to confer territorial jurisdiction on this Court.
22.As is also clear from Union of India v. Adani Exports case (supra), that the entire facts pleaded would determine 'cause of action' and not merely happening of an inconsequential event that would determine 'cause of action', and in order to confer jurisdiction on a High Court to entertain a writ petition, the High Court must be satisfied from entire facts pleaded in support of 'cause of action' that those facts do constitute a cause, so as to empower the Court to decide a dispute, which has, at least, arisen within its jurisdiction. Qua present case:
inquiry was conducted not within territorial jurisdiction of this Court; petitioner, at the time of conducting of inquiry, was not posted within jurisdiction of this Court; impugned order, imposing certain punishments on petitioner was passed, giving rise to fresh 'cause of action', was not also passed within territorial jurisdiction of this Court; petitioner, when impugned order was passed, was not even posted within territorial jurisdiction of this Court; and petitioner is not even as on today posted within territorial jurisdiction of this Court. In such circumstances, 'cause of action' to throw challenge to impugned order dated 18th April 2016, imposing certain punishments on him, has arisen SWP no. 2163/2015 Page 15 of 20 16 not within territorial jurisdiction of this Court. Apart from this, as already noticed that expeditious disposal is one of the underlining features of provisions of Article 226 and to ensure balancing of convenience between parties to the lis, it may be appropriate that the courts determine the question of jurisdiction at the first instance. Be that as it may, it would have been appropriate for the petitioner to approach competent forum, instead of knocking at portals of this Court.
23.It is well settled that proper exercise of jurisdiction would ex facie take in its ambit remedies which are effective and efficacious. If both or any of these ingredients are not satisfied, it would be a factor which will tilt the view of the court against exercising its jurisdiction. The court is expected to deal with the issue of jurisdiction right at the initial stage and normally while taking the petition as framed to be correct. Article 226 (2) opens with the words: "The power conferred by Clause (1) to issue directions, orders of writs to any Government, authority or person may also be...", which clearly indicates amplification of jurisdiction and that the provision is meant to aid the powers vested in the High Court for issuance of writ, order or direction, located within their territorial jurisdiction. The expression 'may also' would have to be given their true meaning while ensuring that such connotations are in consonance with the law enunciated by the Supreme Court and also spirit of constitutional territorial jurisdiction of a High Court.
24.It is a paramount principle of law of jurisdiction that the court has to determine whether it has jurisdiction to entertain and decide a case brought by a litigant before it. Undue hardship is one of the factors which the court would consider while answering such an issue. The doctrines of forum conveniens & forum non conveniens are the legal doctrines used by the court to determine the issue of jurisdiction. Ubi SWP no. 2163/2015 Page 16 of 20 17 jus ibi remedium, there is no wrong without a remedy, is an effective legal maxim often applied to administration of justice but the question is, which is the proper and convenient legal forum or court, whose jurisdiction a party ought to invoke. The petitioner, being dominus litus, is master or has domain over the case but these rights are subject to law of jurisdiction. The laws and procedure, provided under the Code, are lex fori and wherever in terms of such law, the ingredients of territorial jurisdiction are not satisfied, the court would not assume jurisdiction merely on the ground of residence. The doctrine 'forum non conveniens' has a limited application but certainly is not an irrelevant factor, while adjudicating question of jurisdiction under the terms of Article 226 of the Constitution of India. The court iexamine whether a claim should or should not be entertained for forum non conveniens for the reason that there is another forum, i.e. clearly more appropriate than the one whose jurisdiction has been invoked. The inquiry, in the present case, was initiated and conducted at Delhi. Petitioner, posted at U.P., participated in the inquiry. The inquiry conducted at Delhi and participated by petitioner, culminated in issuance of order impugned. Having said so, fresh 'cause of action' has accrued to petitioner, but not within territorial jurisdiction of this Court. Better it would have been for petitioner to approach the court of his convenience, more particularly having regard to the fact that he being presently posted in U.P.
25.That apart, the Supreme Court in a judgment reported as Ambica Industries Versus Commissioner of Central Excise, (2007) 6 SCC 769 has examined the jurisdiction of the High Court against an order passed by the Central Excise and Service Tax Appellate Tribunal, New Delhi constituted to exercise the jurisdiction in respect of cases arising within SWP no. 2163/2015 Page 17 of 20 18 the territorial limits of the State of Uttar Pradesh, National Capital Territory of Delhi and the State of Maharashtra. The Court held that decision of the High Court in an appeal shall be binding only on the authorities which are within its jurisdiction. The binding authority of a High Court does not extend beyond its territorial jurisdiction. It has been further held that though the Code of Civil Procedure is not applicable to the writ proceedings, but since the phraseology used in Section 20 (c) of the Code of Civil Procedure and Clause (2) of Article 226 is pari materia, therefore, the decision of the Court rendered on interpretation of Section 20(c) of the Code of Civil Procedure shall apply to the writ proceedings also. The Court held to the following effect:
"13. The Tribunal, as noticed hereinbefore, exercises jurisdiction over all the three States. In all the three States there are High Courts. In the event, the aggrieved person is treated to be the dominus litus, as a result whereof, he elects to file the appeal before one or the other High Court, the decision of the High Court shall be binding only on the authorities which are within its jurisdiction. It will only be of persuasive value on the authorities functioning under a different jurisdiction. If the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Courts or courts or tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play. An assessee, affected by an order of assessment made at Bombay, may invoke the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the High Court at Bombay.
38. We have noticed hereinbefore that if the decision of the High Court in the aforementioned question is taken to its logical conclusion, the same would lead to a great anomaly. It would also give rise to the problem of forum shopping. We may notice some examples to show that the determination of the appellate forum based upon the situs of the tribunal would lead to an anomalous result. For example, an assessee affected by an assessment order in Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it which may be contrary to judgments of the High Court of Bombay. This cannot be allowed."SWP no. 2163/2015 Page 18 of 20 19
26.Similar view was further iterated by the Supreme Court in Eastern Coalfields Ltd. and others Versus Kalyan Banerjee, (2008) 3 SCC 456 wherein three-Judge Bench judgment of the Supreme Court in Kusum Ingots & Alloys Ltd. Versus Union of India and another, (2004) 6 SCC 254 was considered. It was held as under:
"7. "Cause of action", for the purpose of Article 22(2) of the Constitution of India, for all intent and purport, must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. It means a bundle of facts which are required to be proved. The entire bundle of facts pleaded, however, need not constitute a cause of action as what is necessary to be proved is material facts whereupon a writ petition can be allowed.
13. In view of the decision of the Division Bench of the Calcutta High Court that the entire cause of action arose in Mugma area within the Patna High Court, we are of the opinion that only because the head office of the appellant Company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court, particularly when the head office had nothing to do with the order of punishment passed against the respondent."
27.The three Judge Bench of the Supreme court in Kusum Ingots and Alloys Ltd case (supra) has held to the following effect:
"27. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority."
28.From the aforesaid discussion and keeping in view the ratio laid down in catena of decisions by the Supreme Court, it is clear that for the purpose of deciding whether facts averred by the 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 'cause of action'. It is, no doubt, true that even if a small fraction of the SWP no. 2163/2015 Page 19 of 20 20 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.
29.Since, in the present case, the situs of respondents, whose order is subject matter of challenge in this writ petition, is beyond territorial limits of this Court; respondents are not within the jurisdiction of this Court; and the subject matter of claim of petitioner, that is, inquiry conducted by respondents materialised and outcome thereof in the shape of impugned order took place beyond the jurisdiction of this Court, besides petitioner as well permanently or temporarily does reside beyond the territorial jurisdiction of this Court, therefore, this Court will not have territorial jurisdiction to entertain the present writ petition as no cause of action vis-à-vis impugned order dated 18th April 2016, has arisen within jurisdiction of this Court.
30.Resultantly and in view of above enunciated principles of law, I am of the view that this Court has no territorial jurisdiction to entertain and decide present writ petition. The same is, accordingly, dismissed with liberty to petitioner to approach the Court of competent jurisdiction. Needless to add, this order will not be read as an expression of opinion on the merits of the case. Dismissed.
(Tashi Rabstan) Judge Srinagar 14th September, 2017 Ajaz Ahmad I pronounce this judgement in terms of Rule 138(3) of J&K High Court Rules, 1999.
( Sanjeev Kumar ) Judge Srinagar 14th September 2017 SWP no. 2163/2015 Page 20 of 20