Surendra Singh v. State of Uttar Pradesh — 1988 DIGILAW 82 (ALL)

JUDGMENT S.D. Agarwala, J. - This is a petition under Article 226 of the Constitution of India. The petition has been filed by Surendra Singh who was working as a Member-Secretary of the U.P. Pollution Control Board. He has challenged two orders one dated 15th April, 1987 and the other dated 28th April, 1987. By the order dated 15th April, 1987, an order for transfer was passed against the petitioner by the Secretary Environment Department. Government of Uttar Pradesh, by which it was directed that the petitioner should take charge tinder the department of Environment. By the subsequent order dated 28th April. 1987,. the Secretary, Environment Department, U.P. terminated the petitioners services. 2. It is not disputed that both the orders were passed in Lucknow and the petitioner was also working at Lucknow. This petition was filed in this Court on 4-5-1987. It came tip for orders on 4th May, 1987. This Court directed that the petitioner may serve the respondents 2 and 4 personally outside court and an ad interim order was also passed staying the operation of the orders dated 15th April, 1987 and 28th April, 1987. The orders which were passed on the petition as well as in the stay application on 4th May, 1987 are quoted below : Stay Application "Put up for further orders at the time of admission of the writ petition. Meanwhile, operation of the impugned orders dated 15-4-1987 and 28-4-1987 (marked as Annexures Nos. 5 and7 respectively to the writ petition) shall remain stayed. However, it will be open to the respondents not to take work from the petitioner but in that case, they shall pay his salary." Writ Petition "In addition to the normal mode of service, the petitioner shall serve respondents Nos. 2 and 4 personally outside the Court within two weeks. Affidavit of service may be filed within three weeks. Office shall hand over notices and necessary copies within 24 hours if possible. Learned Standing Counsel has accepted notice on behalf of respondents Nos. 1 and 3. He prays for and is allowed three weeks, time to file counter affidavit. List for admission after three weeks." 3. On 11th May, 1987, an application was moved on behalf of the U.P. Pollution Control Board for vacating the ex paste interim order dated 4th May, 1987. This application was supported by a counter affidavit. 1 and 3. He prays for and is allowed three weeks, time to file counter affidavit. List for admission after three weeks." 3. On 11th May, 1987, an application was moved on behalf of the U.P. Pollution Control Board for vacating the ex paste interim order dated 4th May, 1987. This application was supported by a counter affidavit. In paragraph 3 of the counter affidavit, an objection was taken to the effect that since the cause of action arose at Lucknow, the Lucknow Bench alone had the jurisdiction to entertain the petition,This application came up for hearing before another Bench of this Court on 14th May, 1987. This Court on 14th May, 1987 modified the order to the effect that the petitioner shall not insist on working as the Member-Secretary, but he would get salary of the said post. The actual order passed on 14th May, 1987 was to the following effect : "We have heard Sri R.C. Srivastava, learned counsel for U.Y. Pollution Control Board, Lucknow and Sri R.H. Zaidi, counsel for the petitioner. There is some ambiguity in the interim order dated 4-5-87. Consequently in order to remove the same and for clarifying the position, we hereby direct that the petitioner would not insist on working as Member- Secretary. He would, however, get salary of the said post." Since the application dated 11th May, 1987 was supported by a counter affidavit, on 14th May, 1987 the petitioner was granted a month's time to file a rejoinder affidavit. On 7th July, 1987 another application was moved on behalf of respondents Nos. I and 2 supported by a counter affidavit with the prayer that the case be transferred to the Lucknow Bench of the High Court and also to vacate the ex parte interim order dated 4th May, 1987. In view of this application, the matter again came before this Court on 21st July, 1987. The learned Addl. Advocate General appeared on behalf of the respondents and again urged that the Bench of High Court at Allahabad had no jurisdiction. The Bench consequently, directed. after hearing the parties that the Addl. Advocate General shall file an affidavit giving his version on the question as to where the termination order was served on the petitioner. The learned Addl. Advocate General appeared on behalf of the respondents and again urged that the Bench of High Court at Allahabad had no jurisdiction. The Bench consequently, directed. after hearing the parties that the Addl. Advocate General shall file an affidavit giving his version on the question as to where the termination order was served on the petitioner. The order dated 31st July, 1987 is quoted below : "The learned Additional Advocate General has argued that the Bench of the High Court at Allahabad has no jurisdiction. One piece of a crucial information is as to where the order terminating the services of the petitioner was served on the petitioner. The learned Additional Advocate General prays for and is granted 7 days' time to file an affidavit giving his version as to where the termination order was served on the petitioner. The petitioner will have time up to the 11th August to file a reply. List on 14-8-1987." A supplementary counter affidavit was filed by Surendra Chandra Jain, Special Secretary to the State of U.P., Department of Forest and Environment. In this supplementary affidavit, it was categorically stated that the order of termination dated 28th April, 1987 was served on the petitioner on 28th April, 1987 in the room of the Secretary, Forest and Environment, Government of U.P., Civil Secretariat, Lucknow. It was further stated that a cheque was also received by the petitioner himself on that date at Lucknow which was one month's salary in lieu of one month's notice. 4. In reply to this supplementary counter affidavit, the petitioner filed a supplementary rejoinder affidavit stating that the order dated 28th April, 1987 was not served on him at Lucknow. He further set up a case that the order was served on him at Allahabad in the evening of 28th April, 1987 and as such, according to the petitioner, this Court had jurisdiction to entertain the petition. Another supplementary counter affidavit was filed by Surendra Chandra Jain, Special Secretary, Department of Forest and Environment denying the allegations made in the supplementary rejoinder affidavit filed by the petitioner. The allegations made in the supplementary counter affidavit by Surendra Chandra Jain were also refuted by another supplementary rejoinder affidavit filed by the petitioner. Another supplementary counter affidavit was filed by Surendra Chandra Jain, Special Secretary, Department of Forest and Environment denying the allegations made in the supplementary rejoinder affidavit filed by the petitioner. The allegations made in the supplementary counter affidavit by Surendra Chandra Jain were also refuted by another supplementary rejoinder affidavit filed by the petitioner. Thereafter, the matter came up for admission and a preliminary objection was raised by the Advocate General to the effect that this Court had no jurisdiction to entertain the petition as the cause of action arose at Lucknow and not at Allahabad. We accordingly heard learned counsel for the parties on this preliminary objection. 5. Learned counsel for the petitioner has disputed the averments made by the respondents that both the transfer order as well as the termination order were served on the petitioner at Lucknow. In the circumstances, it is necessary to consider this question first. 6. in Nasir Uddin v. State Transport Appellate Tribunal, AIR 1976 SC 331 the Hon'ble Supreme Court had an occasion to consider the question as to when and in which circumstances, the petition will lie at Allahabad or at Lucknow. It held that if the cause of action wholly arises within Oudh areas then the Lucknow Bench will have jurisdiction. Similarly if the cause of action arises wholly outside the specified areas in Oudh, then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahadad. It is consequently settled that if a part of the cause of action arises at Allahabad then this petition would be maintainable at Allahabad. But if no part of the cause of action arises at Allahabad and whole of the cause of action arises at Lucknow, then the Lucknow Bench will have the jurisdiction to entertain this petition. 7. The question, therefore, which has to be determined by us is whether in the facts and circumstances of this case, part of the cause of action arises within the jurisdiction of this Court at Allahabad. 8. 7. The question, therefore, which has to be determined by us is whether in the facts and circumstances of this case, part of the cause of action arises within the jurisdiction of this Court at Allahabad. 8. In the petition which was filed in this Court, the petitioner did not make any averment as to how this Court got jurisdiction in the matter when both the orders impugned had been passed at Lucknow. When an application was made for vacating the stay order dated 4th May, 1987, supported by a counter affidavit of R.S.L. Srivastava, where the question of jurisdiction was raised the petitioner filed a rejoinder affidavit. In the rejoinder affidavit, sworn on 15th July, 1987, for the first time, "in paragraph 4 of the rejoinder affidavit it was stated that the petitioner was on leave from 13th April to 15th April, 1987. The order of 15th April. 1987 was sent to the petitioner while he was living in Allahabad at8, Bund Road. through a Special. messenger. The petitioner read the order in toto and he objected to the same. It was further alleged that messenger posted the order of 15th April, 1987 at 8 Bund Road, Edelphy Buildings, Allahabad and went back. It was further stated that the petitioner left for Lucknow in the morning of 16th April, 1987 and attended the office which is situated at Kapurthala Complex, Aliganj, Lucknow and that, thereafter, the petitioner was directed to hand over charge by Sri Kamal Pandey after shutting the room. In this rejoinder affidavit, it is significant to note that it was not stated that the order dated 28th April, 1987, by virtue of which the petitioner's services were terminated, was served on hint at Allahabad. Had the order been served on the petitioner at Allahabad, the petitioner would definitely have stated this fact in this rejoinder affidavit, which has been sworn on 15th July, 1987. A supplementary counter affidavit was filed by Surendra Chandra Jain. Special Secretary to Government of Uttar Pradesh, Department of Forest and Environment on 5th August, 1987 stating categorically that the termination order was served upon the petitioner at Lucknow and the petitioner also received a cheque for one month's salary in lieu of one month's notice also at Lucknow. A supplementary counter affidavit was filed by Surendra Chandra Jain. Special Secretary to Government of Uttar Pradesh, Department of Forest and Environment on 5th August, 1987 stating categorically that the termination order was served upon the petitioner at Lucknow and the petitioner also received a cheque for one month's salary in lieu of one month's notice also at Lucknow. It was in reply to this affidavit, that the petitioner set up a case that actually the termination order was served at Allahabad and further stated that actually he left for Lucknow by taxi No. UMT 145 and went to Mankapur to collect his parents, and, thereafter, after collecting his parents, he reached at Allahabad in the evening of 28th April, 1987 and then after he reached at Allahalkid, the termination order was served upon him through a messenger. 9. In our opinion, we are not prepared to believe the story set up by the petitioner in the supplementary rejoinder affidavit sworn on 14th August 1987. We find no reason to disbelieve the supplementary counter affidavit of Surendra Chandra Jain, who is Special Secretary to the Government of Uttar Pradesh, Department of Forest and Environment, Lucknow, wherein he had categorically stated that the order was served on the petitioner at Luck now and the cheque was also delivered to the petitioner at Lucknow. As stated above, this conclusion of ours is further strengthened by the fact that when for the first time the petitioner set up a case in the rejoinder affidavit dated 15th July, 1987, he did not aver that the order dated 28th April, 1987 was served upon him at Allahahad. In our opinion, the case now set up by the petitioner in regard to the service of the termination order at Allahabad is an afterthought. 10. In so far as the service of the order dated 15th April, 1987 is concerned, it was a mere transfer order. The petitioner already took the charge on the post on which he was transferred and that too, he does not specially state that it was served at Allahabad. His only case is that the same was posted at Allahabad, but he does admit it in the rejoinder affidavit dated 15th July, 1987 that actually the transfer order was served upon him at Lucknow. 11. His only case is that the same was posted at Allahabad, but he does admit it in the rejoinder affidavit dated 15th July, 1987 that actually the transfer order was served upon him at Lucknow. 11. In view of the above, we are clearly of the opinion that both the orders dated 15th April, 1987 and 28th April, 1987 were served upon the petitioner at Lucknow. No part of the cause of action arose at Allahabad and, as such, the petition was not at all entertain able at Allahabad. The preliminary objection, therefore, raised on behalf of the respondents is upheld. 12 The controversy which has now to be decided is as to what order be passed on the petition. 13. The argument of learned counsel for the respondents is that the petition should be dismissed as not maintainable. On the other hand,' learned counsel for the petitioner, relying upon the case of Nasiruddin v. State Transport Appellate Tribunal (supra) has urged that the case having been mistakenly or inadvertently entertained at Allahabad, this court should transfer the papers of the case to Lucknow and not dismiss the petition on the ground that it is not maintainable. 14. The respondents case in this connection is that unless the petition under Article 226 of the Constitution of India is admitted, it cannot be treated as a petition which has been entertained by this Court and as such, the only course open is to dismiss the petition as not maintainable. 15. We have accordingly to consider the question as to what meaning is to be assigned to the word "entertain" in relation to a petition under Article 226 of the Constitution of India. 16. Before considering the question as to what meaning is to be assigned to the word "entertain", it is appropriate to mention that in Nirmal Dass v. Sales Tax Tribunal, AIR 1972 All 200 , the Full Bench of t his Court had held as follows : 1. "Case falling within the jurisdiction of Judges at Lucknow should be presented at Lucknow and not at Allahabad. 2. However, it such a case is presented at Allahabad, the Judges at Allahabad cannot summarily dismiss it only for that reason. "Case falling within the jurisdiction of Judges at Lucknow should be presented at Lucknow and not at Allahabad. 2. However, it such a case is presented at Allahabad, the Judges at Allahabad cannot summarily dismiss it only for that reason. The case should be returned for filing before the Judges at Lucknow and where the case has been mistakenly or inadvertently entertained at Allahabad, a direction should be made to the High Court office to transmit the papers of the case to Lucknow." This decision of the Full Court was accepted by the Hon'ble Supreme Court in the case of Nasiruddin (supra). In the light of the law laid down above, it has been urged by learned Advocated General that a petition under Article 226 of the Constitution of India can only be deemed to be entertained when it has been admitted by this Court and not otherwise. He has, consequently, further urged that since this petition has not been entertained, the petition should be dismissed as not maintainable and it is not necessary for this Court to transmit the papers of the case to Lucknow. 17. Learned counsel for the parties have relied upon various cases of different courts in support of their contention as to what meaning should be given to the word "entertain". It is not necessary to refer in detail the cases cited by the parties as the cases cited by the parties have been considered by the Hon'ble Supreme Court in the case of Lakshmiratan Engineering Works Ltd. v. Asstt. Commr. Sales Tax, AIR 1968 SC 488 and the Hon'ble Supreme Court has laid down the law as to what meaning should be given to the word "entertain". 18. Learned Advocate-General has relied upon the paragraph 10 and learned counsel for the petitioner has relied upon paragraph 13 of the decision in Lakshmiratan Engineering Works Ltd. (supra). Both these paragraphs are quoted below : Para 10 : "In our opinion these cases have taken a correct view of the word "entertain" 'which according to dictionary also means 'admit' to consideration'. It would therefore appear that the direction to the court in the proviso to S. 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. It would therefore appear that the direction to the court in the proviso to S. 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai C.J.) holds that the words "accompanied by" showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the share of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion making 'an appeal' the equivalent of the memorandum of appeal is not sound. Even under 0. 41 of the Code of Civil Procedure, the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things. In Wharton's Law Lexicon, the word "appeal" is defined as the judicial examination of the decision by a higher Court of the decision of an inferior court. The appeal is the judicial examination, the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax. Para 13 : "The distinction made by the learned Chief Justice between the tangible and intangible objects does not in our opinion fall for consideration in the present case. If one holds that by 'entertainment' is meant the time of admission of the appeal, satisfactory proof may be furnished at the time of admission of the appeal. We are of opinion that by the word "entertain" here is meant the first occasion on which the court takes up the matter for consideration. If one holds that by 'entertainment' is meant the time of admission of the appeal, satisfactory proof may be furnished at the time of admission of the appeal. We are of opinion that by the word "entertain" here is meant the first occasion on which the court takes up the matter for consideration. It may be at the admission stage or if by the rules of that Tribunal the appeals are automatically admitted, it will be the time of hearing of the appeal But on the first occasion when the court takes up the matter for consideration, satisfactory proof must be presented that the tax was paid within the period by limitation available for the appeal. In the present case when the Assistant Commissioner took up the appeal for consideration, satisfactory proof was available in the shape of a certificate which even today is not denied In our opinion the Assistant Commissioner was wrong in declining to consider the appeal in the presence of such contestable proof." In paragraph 10, the Hon'ble Supreme Court held that the word 'entertain' should mean admit to considerations. The words 'admit to consideration' have been elaborated and explained in paragraph 13 quoted above and it was ultimately held by the Hon'ble Supreme Court that the word 'entertain' in the context of that case is meant the first occasion on which the Court takes up the matter for consideration. It may be at the admission stage or if by the rules of the Tribunal the appeals are automatically admitted, it would be the time of hearing of the appeal. 19. It is not disputed that writ petitions under Article 226 of the Constitution of India are not automatically admitted and the petitioner is heard before the petition is admitted. Chapter XXII of the Allahabad High Court Rules, 1952 deals with the procedure to be followed in regard to the petitions under Article 226 of the Constitution of India. Proviso to R. 2 of Chapt. XXII reads as under: "Where notice of motion has already been served upon the Government Advocate or Standing Counsel, as the case may be, and there is no other party to be served, the court may dispose of it on the merits at the very first hearing." The Rule does not provide that the petition can only be heard when it is admitted. On the other hand the Second proviso clearly provides that the petition can be disposed of on the merits at the very first hearing if the notice of motion has already been served upon the Government Advocate or the Standing Counsel. 20. In the circumstances, in our opinion, the word 'entertain' cannot possibly mean that the petition would be taken as entertained when the petition has been admitted and not otherwise. The petition would be deemed to be entertained when the court on the first occasion takes up the matter for consideration. By mere filing of the petition, it cannot be taken as entertained, but if a petition is filed and the court applies its mind on the facts of the case, and thereafter, either before admission directs issue of notice or issues an ex parte interim order, then, in our opinion, it would be a case where the petition would be deemed to be entertained. 21. In the instant case, the petition was filed on 4th May, 1987. On 4th May, 1987, this Court heard learned counsel for the petitioner. Learned Standing Counsel was present on behalf of respondents 1 and 3. The counsel for the petitioner was directed to serve respondents 2 and 3 and an interim order was also passed on that date. Subsequently, on 14th May, 1987, after hearing learned counsel for the U.P. Pollution Control Board, Lucknow and learned counsel for the petitioner, the interim order was modified. 22. From the orders passed on 4th May, 1987 and 14th May, 1987, it is clear that for the first time this Court applied its mind to the facts of the present case on 4th May, 1987 and thereafter, again on 14th May, 1987 when the stay order was modified. These orders were passed without courts' knowledge of the fact that the petition was not entertainable at Allahabad. This is, therefore, clearly a case where the petition has been inadvertently entertained at Allahabad. 23. Learned counsel for the respondents, however, during the course of arguments, urged that the interim order be vacated. Since the interim order is only to the effect that the petitioner shall be paid his salary, it is not such a case where it requires immediate modification or vacation at this stage. 23. Learned counsel for the respondents, however, during the course of arguments, urged that the interim order be vacated. Since the interim order is only to the effect that the petitioner shall be paid his salary, it is not such a case where it requires immediate modification or vacation at this stage. It will be open to the parties to urge this question when the petition is taken up by the Lucknow Bench of this Court. 24. In the result, we hold that this petition is not maintainable at Allahabad. It was inadvertently entertained at Allahabad. 25. In view of the above, we direct the High Court to transmit the record of this case to the Lucknow Bench forthwith without any delay.