Kumar Prosad Mukherjee v. Union of India — 1982 DIGILAW 311 (CAL)

Judgment The petitioner, Kumar Prosad Mukherjee was at the relevant time, the Director (Commercial) of the Respondent No. 3, Coal India Limited, a Government Company within the meaning of section 617 of the Companies Act, 1956 having its registered office at No. 10, Netaji Subhas Road, Calcutta. The petitioner has, in the writ petition, challenged a communication dated 19.5.1981, issued in the name of the President of India, terminating his services as the Director (Commercial) with immediate effect. Also under challenge a Circular dated 22.5.1981 issued by the Chief Executive (Establishment and Administration) of Coal India Limited, Calcutta to its subsidiary companies informing them about the essation of the employment in Coal India Limited of the petitioner with effect from 21.5.1981. 2. I am at the moment concerned with an application filed on behalf of the Union of India and the Deputy Secretary to the Government of India, Ministry of Energy, Department of Coal, New Delhi (Respondents Nos. 1 and 2 respectively) and affirmed by an affidavit by one Sri Tirumalai Cunnawakkam Anandan Pillai Srinivasan on 4.12.1981 praying that the writ petition of Kumar Prasad Mukherjee in Civil Rule No. 5885(W) of 1981 be dismissed on the ground that this Court has no jurisdiction to entertain the same and that all the interim orders passed therein be vacated. 3. I have heard Mr. Subrata Roy Chowdhury in support of the application, Mr. Roy Chowdhury submitted that the petitioner in paragraphs 2 and 47 of the writ petition has pleaded how he was invoking this Court's jurisdiction under Article 226 of the Constitution. Mr. Roy Chowdhury's contention is that as no part of the cause of actions arose within the jurisdiction of this Court, the writ petition should be dismissed. In elaborating his argument Mr. Roy Chowdhury has brought to my notice the following facts:- 4. The petitioner, who was serving as the Director (Commercial) at the Head Office of Coal India Ltd. in Calcutta, was by an order dated 30.9.80, on the expiry of his leave on that day, posted to Coal India's office at Delhi. A copy of this office Memo is Annexure "A" to the application for dismissal of the writ petition (hereinafter referred to as the 'dismissal application'). Mr. Roy Chowdhury then drew my attention to the supplementary affidavit affirmed by Sri Ramnath Sharma, Chairman of the Respondent No. 3, Coal India Limited on 25.3.83. A copy of this office Memo is Annexure "A" to the application for dismissal of the writ petition (hereinafter referred to as the 'dismissal application'). Mr. Roy Chowdhury then drew my attention to the supplementary affidavit affirmed by Sri Ramnath Sharma, Chairman of the Respondent No. 3, Coal India Limited on 25.3.83. Annexure 'A' to the said affidavit is a xerox copy of the Charge Assumption Report signed by the petitioner on 1.11.80 to the effect that he was assuming charge as the Director (Commercial) of Coal India Ltd. at New Delhi. Mr. Roy Chowdhury has also referred to the Travelling Allowance Bill submitted by the petitioner for going on transfer from Calcutta to Delhi and also bills submitted by him for going out from his Headquarters at Delhi to other places in connection with his duties, xerox copies whereof are Annexures 'B' to 'D' of the said supplementary affidavit. Mr. Roy Chowdhury then drew my attention to Annexure 'B' to the dismissal application, which is a xerox copy of the impugned order dated 19.5.81, whereby the writ petitioner was informed that the President had terminated his service with effect from that date. Mr. Roy Chowdhury also drew my attention to the fact that the petitioner had received copies of the communication dated 19.5.81 and a Cheque for Rs.11,884.20 P. at New Delhi and had given a receipt to that effect on 21.5.81. A copy of the Receipt is included in Annexure 'B' to the dismissal application. Annexure 'C' to the dismissal application is an affidavit of M.S. Rama Rao, Regional Manager, Coal India Ltd., Inter alia, to the effect that he had handed over the letter dated 19.5.81 and the cheque to the petitioner and obtained his signature on the duplicate copy at the Coal India's Guest House at New Delhi on 21.5.81 at about 3 p.m. 5. Mr. Roy Chowdhury's contention is that the cause of action arose from the service of the letter dated 19.5.81 removing the petitioner from the service of Coal India Ltd. and the same having been served at New Delhi, no part of the cause of action can be deemed to have arisen within the jurisdiction of this Court. Mr. Mr. Roy Chowdhury's contention is that the cause of action arose from the service of the letter dated 19.5.81 removing the petitioner from the service of Coal India Ltd. and the same having been served at New Delhi, no part of the cause of action can be deemed to have arisen within the jurisdiction of this Court. Mr. Roy Chowdhury further submitted that the Circular dated 22.5.1981 does not form any part of the cause of action nor was it an order which was addressed or served on the writ petitioner, and the said Circular cannot and does not in any way effect any right of the petitioner, who had already ceased to be an employee of Coal India Ltd. upon service of the letter of termination dated 19.5.81 by which the writ petitioner's connection and/or employment in Coal India Ltd. as the Director (Commercial), completely ceased. Mr. Roy Chowdhury also submitted that in the discharge of his duties the petitioners was required to travel to various places including Calcutta to attend Board Meetings, and the mere fact that the Headquarters of the Respondent No. 3 was at Calcutta and the petitioner also had to attend Board Meetings in this city would not necessarily give this Court jurisdiction. Some decisions were cited by Mr. Roy Chowdhury in support of his arguments and I shall refer to them in course of my judgment. 6. Mr. Bhaskar Gupta, appearing on behalf of the writ petitioner, has opposed the dismissal application. Mr. Gupta has contended that by the Circular dated 22.5.81, Coal India Ltd. had sought to remove the petitioner from the employment of Coal India Ltd. with effect from that date, and as this Circular has been challenged independently and in addition to the notice dated 19.5.81, and the Circular having been issued by the Coal India's Head Office at Calcutta, a part of the cause of action should be deemed to have arisen in Calcutta so as to permit this Court's interference under Article 226 of the Constitution. The next submission of Mr. The next submission of Mr. Gupta is that the President of India who first issuing the Notice dated 19.5.81, was acting in exercise of the power under the Articles of Association of Coal India Ltd. and therefore, was acting on behalf of Coal India Ltd., and the removal from Directorship of the petitioner was on behalf of Coal India Ltd. by the President in exercise of the powers vested in him by the Articles of Association of the Company. The removal as such was by or on behalf of Coal India Ltd. which is situated within the jurisdiction of this Court at 10, Netaji Subhas Road, Calcutta and as such the writ petition is maintainable. 7. The next submission of Mr. Gupta is that as a part of his duties, the petitioner had to function as a Director at Calcutta and this is also a part of the cause of action as the writ petitioner is being deprived of his right to function as a Director at Calcutta by the impugned order and the Circular. Mr. Gupta further contended that the petitioner has an official residence at Calcutta and even after the order of the President dated 19.5.81 the petitioner continued to be a Director of Coal India Ltd. at Calcutta, as he was independently discharging his function as a Director by attending Board Meetings at Calcutta and the petitioner was also maintaining an office at 10, Netaji Subhash Road, Calcutta where all Official communications were addressed to him. As such this Court is empowered to entertain the writ petition. Mr. Gupta has mainly relied on a decision of a Division Bench of this Court in the case of (1) Uma Sankar Chatterjee v. Union of India & Ors., reported in 86 CWN No. 348. 8. The petitioner obtained this rule and an ex parte interim order from a Vacation Judge on 26.5.81 in terms of prayer (f) of the petition restraining the Respondent from giving effect to the impugned communication dated 19.5.81 and to the Circular dated 22.5.81. On appeal, the Division Bench by an order dated 15.6.81, stayed the entire order pending the hearing of the appeal. On appeal, the Division Bench by an order dated 15.6.81, stayed the entire order pending the hearing of the appeal. 'The petitioner filed a Special Leave petition before the Supreme Court and by an order dated 20.7.81 the Special Leave petition was dismissed and this Court was directed to dispose of the writ petition on merits within a period of six months. 9. The petitioner has invoked this Court's jurisdiction under Article 226 of the Constitution by the averments made in paragraphs 2 and 47 of the writ petition. The relevant portion of paragraph 2 reads as follows:- "2. The subject-matter of challenge in this writ petition is a communication bearing No. 38014/9/81-CA dated 19th May, 1981 issued to your petitioner at Calcutta by the Deputy Secretary to the Government of India, Ministry of Energy, Department of Coal, purporting to terminate his services as Director (Commercial) Coal India Limited with immediate effect". Paragraph 47 of the writ petition is in the following terms:- "The said impugned communication dated 19th May, 1981 was sent to your petitioner at Calcutta within the jurisdiction of this Hon'ble Court. The Circular dated 22nd May, 1981 has also been circulated at Calcutta within the jurisdiction of this Court. Your petitioner is entitled under the terms of his employment to discharge his functions as Director (Commercial) from the Head Quarters, Coal India Ltd. at No. 10, Netaji Subhas Road, Calcutta within the jurisdiction of his Hon'ble Court but by the illegal and invalid actions of the respondents complained of herein, he has been prevented from doing so. This Hon’ble Court has jurisdiction to entertain and try this application." 10. Under Clause (2) of Article 226 of the Constitution the Court can in exercise of the powers conferred by Clause (1) of the Article, issue directions, orders or writs, inter alia to any Government of authority exercising jurisdiction in relation to tae 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 is not within those territories. Therefore, in order to enable me to entertain the writ petition, I have got to ascertain whether the cause of action or any part thereof arose within the jurisdiction of this Court. 11. In deciding this question it will be necessary to refer to a few documents. Therefore, in order to enable me to entertain the writ petition, I have got to ascertain whether the cause of action or any part thereof arose within the jurisdiction of this Court. 11. In deciding this question it will be necessary to refer to a few documents. They are:- (a) The Office Memorandum dated 30.9.80 issued by Sri R.N. Sharma, Chairman, Coal India Ltd. inter alia to the effect that on the expiry of his leave on 30.9.80, Sri K.P. Mukherjee, Director (Commercial) is posted to the Coal India's Office at Delhi. A copy of this letter is Annexure 'A' to the dismissal application. (b) The charge assumption report dated 1.11.80 signed by the petitioner stating, "I hereby assume charge as Director (Commercial) Coal India Ltd. at New Delhi". A photo copy of this report is Annexure "A" to the supplementary affidavit of Sri Ram Nath Sharma. (c) The T.A. Bills submitted by the petitioner for his travelling expenses by A.C. First Class any "Settling-in-Allowance" amounting to Rs.545/- and Rs.500/- respectively as admissible under the rules on his transfer from Calcutta to Delhi. Photo copies of these bills are Annexure 'B' to the supplementary affidavit of Ram Nath Sharma. (d) T.A. Bills of the petitioner for his visit to other places in this country in connection with the business of Coal India Ltd. showing his Headquarters station as Delhi. Photo copies of these bills are included in Annexure 'C' to the supplementary affidavit of Ram Nath Sharma. (e) The statement made in para 5 of the aforesaid supplementary affidavit giving the periods when the writ petitioner stayed at the Coal India's Guest House in Delhi from November, 80 to May, 81 and the details of the places, visited by the petitioner from Delhi during the same period. (f) The statement made in para 7 of the aforesaid supplementary affidavit that by a Note dated 10.11.80 addressed to the Chief of Finance, Coal India Ltd. the petitioner had asked for payment of his salary and T.A. bills from Calcutta copy of Note is Annexure 'D' to the said supplementary affidavit. (g) The impugned order passed by the President on 19.5.81 removing the petitioner from the service of Coal India Ltd. a copy of which is Annexure 'B' to the dismissal application. (g) The impugned order passed by the President on 19.5.81 removing the petitioner from the service of Coal India Ltd. a copy of which is Annexure 'B' to the dismissal application. (h) The receipt given by the petitioner acknowledging receipt of the removal letter and the cheque, reference of which has already been given above. (i) The cyclostyled letter dated 22.5.81 circulated in the office of Coal India Ltd. at Calcutta and the subsidiaries throughout the country. This is Annexure (D) to the dismissal application. 12. It is clear from the aforesaid documents that the petitioner was, on the expiry of his leave on 30.9.80 transferred and posted in Coal India's office at Delhi where he assumed charges by giving a charge assumption Report on 1.11.80. Not only did he assume charge at Delhi but he also submitted bills for his passage from Calcutta to Delhi by A.C. First Class & the settling-in-allowance under the Rules of Transfer amounting to Rs.500/- and he also received a cheque for the total amount. Thereafter in course of his duties the petitioner had to visit different places in India, including Calcutta, where he also attended Board Meetings. For these visits the petitioner submitted T.A. Bills showing Delhi as his Headquarters. Merely because the petitioner, after assuming charge as Director (Commercial) at Delhi, had to visit amongst other places, Calcutta does not go to show that he also had an appointment at Calcutta independent of his posting at Delhi. The petitioner, when he opted for service under the Coal Mines Authority and was later absorbed in Coal India Ltd. he was governed by the Memorandum and Articles of Association of Coal India Ltd. Under Rule 33(d)(iv) thereof the President can at any time, remove the Chairman, Vice-Chairman or any whole-time or part-time Director from his office at his absolute discretion. Therefore, the order of removal having been passed by the President of India in accord3nce with Rule 33 of the Memorandum and Articles of Association of the respondent No. 3, the petitioner ceased to be in the service of Coal India Ltd. on and from 19.5.81. After his removal from the service of Coal India Ltd. the petitioner had no other function to discharge and he was also not entitled to act as a Director of Coal India Ltd. at Calcutta or at any other place and/or to attend any of the Board meetings. After his removal from the service of Coal India Ltd. the petitioner had no other function to discharge and he was also not entitled to act as a Director of Coal India Ltd. at Calcutta or at any other place and/or to attend any of the Board meetings. The Circular dated 22.5.81 merely gave information to the various subsidiaries of Coal India Ltd. as to the fact that the petitioner had been removed from service. The circular by itself cannot possibly give rise to any independent cause of action. In this connection the decision of the Calcutta High Court in the case of (2) Barshanlal Ananda Prakash & Anr. v. Collector of Customs and Central Excise, Shillong, Assam and Ors., reported in 1974 CLJ 27 may referred to. In this decision it was observed as follows at page 66 of the report:- "What is necessary here is to decide note the precise meaning of the word 'publish' but whether circulation bf the official gazette within the territorial jurisdiction of the Court 'attracts jurisdiction of the Court or in other words whether circulation of the official gazette is a part of the cause of action. I am unable to hold that circulation of a Notification in an Official Gazette by itself is a part of the cause of action". 13. The impugned order of removal became effective only when it was served on the petitioner at Delhi and as such, this High Court cannot possibly have any jurisdiction, nor can it be said that any part of the cause of action arose within the jurisdiction of this High Court. In this connection reference may be made to Uma Sankar Chatterjee's case (supra) where this Court observed: "Thus it appears from the principles of law laid down in the above decisions that the infringement of rights gives rise to a cause of action and, consequently, the right to sue. It is the case of the appellant in the instant case that his right to remain in service has been infringed by the impugned order of removal. The order of removal therefore, undoubtedly give rise to a cause of action for the appellant to institute an action for the establishment of his right to be in service. It has been already held that the impugned order of removal became effective only when it was served on the appellant in Calcutta. The order of removal therefore, undoubtedly give rise to a cause of action for the appellant to institute an action for the establishment of his right to be in service. It has been already held that the impugned order of removal became effective only when it was served on the appellant in Calcutta. So long as the order was not effective there was no question of accrual of a cause of action or the right to sue. But the moment it became effective there was such accrual of cause of action or the right to sue. The impugned order of removal having become effective in Calcutta where it was received by the appellant, a part of the cause of action must be held to have arisen in Calcutta within the jurisdiction of this Court." 14. In this connection another decision of the Kerala High Court in the case of (3) M.G. George v. Assistt. Director Subsidiary Intelligence Bureau, Kohima, reported in AIR 1977 Kerala at page 4 may be referred to. In this case, the petitioner a Central Government servant was employed as a constable in the service of the Subsidiary Intelligence Bureau. An order terminating his service was passed and served on the petitioner in Nagaland, but the amount due was paid to him in Kerala. It was held that the order of termination became complete with the service of the order on the petitioner in Nagaland the receipt of the amount based on the order of termination cannot be said to be an ingredient in the case of action. In the case of (4) Sheo Nath Singh v. The Appellate Asstt. Commissioner of Income-Tax (Central), Calcutta & Ors., reported in AIR 1971 SC 2451 the Supreme Court made the following observations regarding what should be done when the High Court comes to the conclusion that the Court has no jurisdiction to entertain a writ petition on the ground of jurisdiction :- "The High Court in the first place sustained a preliminary objection which had been raised on behalf of the revenue that because the assessee had filed appeals to the appellant Assistant Commissioner, he could not pursue his petition under Article 226 of the Constitution before the High Court. The other points which has been convassed related to the validity and constitutionality of section 34(1A). The other points which has been convassed related to the validity and constitutionality of section 34(1A). The High Court held that it had been settled by a series of decisions of this Court that it was not unconstitutional. Indeed, that point was subsequently abandoned by the learned Counsel for the assessee. But after holding that the preliminary objection had substance, the High Court proceeded to decide the question relating to the satisfaction of the pre-conditions under section 34(1A) although the correct course for it to follow after sustaining the preliminary objection was to have dismissed the writ petition." 15. The petitioner was an officer of the Industrial Management Pool and after its abolition on 31.1.77, he communicated his willingness to be absorbed in the service of Coal India Ltd. by an option letter dated 4.3.77. A copy of which is Annexure 'B' to the writ petition. As such, under the terms of the option letter he was absorbed in the services of Coal India Ltd. On the terms and conditions contained in para. 2 of the Government of India Resolution No. 4/5/77- B.P.E. (IMP) dated 31.1.77, copy of which is Annexure 'R' to the writ petition. From the resolution and the other documents referred to above, it is clear that the petitioner was holding a contractual appointment under Coal India Ltd. and he was dismissed by the President in accordance with Rule 33(d)(iv) of the Memorandum and Articles of Association of the Coal India Ltd. As such, he cannot also take recourse to this Court's jurisdiction under Article 226 of the Constitution. In this connection reference may be made to the decision of the Supreme Court in the case of (5) Divisional Forest Officer v. Bishwanath Tea Co. Ltd., reported in AIR 1981 SC 1368 wherein it was held that "Where a company tried to enforce through writ petition the right to remove timber without the liability to pay royalty, it was held that the company was not enforcing its right under Rule 37 of the Assam Land and Revenue and Local Rates Regulation, but was seeking to enforce a contractual right under the specific terms of contract of lease agreed to between the company and the Government. Such contractual right, therefore, could not be enforced in writ petition". 16. Such contractual right, therefore, could not be enforced in writ petition". 16. For the reasons, I have given above, I must hold that no part of the cause of action by which the petitioner feels aggrieved, arose within the jurisdiction of this High Court to give me jurisdiction under Article 226 of the Constitution, to entertain this writ petition. 17. I, therefore, allow the dismissal application and discharge the Rule obtained by the writ petitioner in C.R. No. 5885 (W) of 1981 and vacate all interim orders. There will be no order as to costs in any of the applications.