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1999 DIGILAW 234 (KER)

Pitcheiyan v. Co-optex

1999-06-04

M.R.HARIHARAN NAIR, P.A.MOHAMMAD

body1999
Judgment :- P.A. Mohammed, J. In all these cases a preliminary objection has been raised by the learned counsel appearing for the respondents. The objection is that this Court has no power or jurisdiction to entertain these Writ Petitions under Arts.226 and 227 of the Constitution of India and hence we have to decide this question at the outset, 2. The Regional Manager of the Tamil Nadu Handloom Weavers Co-operative Society Ltd., Cochin issued demand notices to the petitioners-employees to remit the amount alleged to have been misappropriated by them on the basis of an enquiry report submitted by the Assistant Director of Handloom and Textiles, Nagarcoil. The appellant in Writ Appeal No. 2107/98 and the petitioners in O.P. Nos. 7774 and 8182 of 1998 are the three employees among others, we are concerned in these cases. 3. On behalf of the respondents it was contended that the cause of action for these cases arose outside the State of Kerala, First of all we have to find out the meaning of the expression 'cause of action"? Unless its meaning is known and the width of it is discerned the perceptivity may not be clear. Brett, J, said in Jay Cooke v. Henry S. Gt f/ (1873)LR8CP107): "Cause of action' has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed, - every fact which the defendant would have a right to traverse". It is a bundle of facts which gives the plaintiff a right to relief against the defendant. In the wider sense they mean the necessary conditions for the maintenance of the suit, including not only the infraction of the right but the infraction coupled with the right itself. But it does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved to enable the plaintiff to obtain a decree. (See Mohammed Khalil Khan v. Mahbub Ali Mian (AIR 1949 PC 78), Deep Narain Singh v. Dietert (ILR (1904) 31 Cal. 274) and In re D. Lakshminarayana Chettiar (AIR 1954 mad 594). Lord Watson observed in Chand Kour v. Partab Singh ((1889) 16 Cal. (See Mohammed Khalil Khan v. Mahbub Ali Mian (AIR 1949 PC 78), Deep Narain Singh v. Dietert (ILR (1904) 31 Cal. 274) and In re D. Lakshminarayana Chettiar (AIR 1954 mad 594). Lord Watson observed in Chand Kour v. Partab Singh ((1889) 16 Cal. 98) thus: "Now the cause of action 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. It refers entirely to the grounds set forth in the plaint as the cause of action, or in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour." Ultimately what emerges is, the cause of action has to be determined with reference to the facts of each case (L Gupta v. Vishnu Baburao Sarvate (AIR 1956 Nagpur 204) and with reference to the substance rather than the form of the action (Krishna Behari Roy v. Brojeswari Chowdranee (LR Vol. II (1874-5) - Indian Appeals 283). 4. Article 226(2) as amended by the Constitution (Forty-second Amendment) Act, 1976 is as follows: "(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". On a combined reading of clauses (1) and (2) of Art.226 it can well be said that a writ can be issued against a Government person or authority if (a) its seat is within the High Court's jurisdiction or (b) the cause of action has arisen wholly or in part within the High Court's jurisdiction. Under clause (2) the High Court gets jurisdiction when the cause of action arises wholly or in part within its territorial limits. This position is no way different from the filing of the suit in court. Under S.20(c) of the Code of Civil Procedure, 1908, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action wholly or in part arises. This position is no way different from the filing of the suit in court. Under S.20(c) of the Code of Civil Procedure, 1908, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action wholly or in part arises. The result is where the impugned order is made by an authority in another State but it becomes effective on service in State 'A' the High Court in State 'A* shall also have jurisdiction as part of the cause of action arose therein. 5. In State of Rajasthan v. M/s. Swaika Properties (AIR 1985 SC 1289) the Supreme Court observed while dealing with the territorial jurisdiction of the Calcutta High Court to entertain a writ petition against a notice issued under S.52(2) of the Rajasthan Urban Improvement Act (35 of 1959) to the owner of a land situated in the State of Rajasthan thus : "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. The mere service of notice under S.52(2) of the Acton .the respondents at their registered office at 18-B, Braboume Road, Calcutta, within the territorial limits of the State of West Bengal, could not give rise to a cause of action within the territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under S.52(1) of the Act arose within the State of Rajasthan i.e., within the territorial jurisdiction of the Rajas than High Court at the Jaipur bench". The Supreme Court further explained that the question whether service of notice is an integral part of the cause of action within the meaning of Art.226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. It further said that the notification dated 8th February 1984 issued by the State Government under S.52(1) of the Act became effective the moment it was published in the official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It further said that the notification dated 8th February 1984 issued by the State Government under S.52(1) of the Act became effective the moment it was published in the official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It is abundantly clear that the apex court has come to the conclusion that the cause of action neither wholly nor in part arose within the territorial limits of the Calcutta High Court purely on the basis of the facts narrated in paragraphs 4, 5 and 6 of the said decision. 6. A Division Bench of this Court in Thomaskutty v. Union of India (1994 (2) KLT 258) followed the above decision of the Supreme Court for holding that the cause of action in that case arose outside the State of Kerala. What was sought to be quashed in that case was the entire proceedings of the District Court Martial and the sentence passed against the writ petitioner. There the charge was framed against the petitioner while he was in military service at Gurdaspur and the trial was conducted there. The petitioner was found guilty and the punishment was imposed at the place where the Court Martial was held. All these bundle of facts show, the cause of action arose at Gurdaspur. It appears the appeal filed by the petitioner against the punishment was rejected by the authority located outside the State of Kerala, but the intimation of dismissing the appeal was served to the petitioner through the Superintendent, Central Prison, Trivandrum where from he was undergoing the sentence. Therefore, the Division Bench said that the mere service of initiation could not be regarded as an integral part of cause of action. 7. A learned single judge of this Court in Kunhabdulla v. Union of India (1983 KLT 1017) took the view that the High Court of Kerala has jurisdiction to entertain a writ petition since the order of dismissal was served during the petitioner's residence within its jurisdiction. It was so held by the learned single judge for the reason that order of dismissal or removal from service would be effective as far as government servant is concerned only when he is appraised of it either by oral communication or by actual service of it upon him. It was so held by the learned single judge for the reason that order of dismissal or removal from service would be effective as far as government servant is concerned only when he is appraised of it either by oral communication or by actual service of it upon him. In support of this view the court relied on the decision of the Calcutta High Court in Uma Sanker Chatterjee v. Union of India (1982 Lab & 1C 1361). What is emphasised in Kunhabdulla's case is the stage at which a cause of action would be effective in the facts of the case. The view of the learned single judge in Kunhabdulla's case was confirmed by the Division Bench in Union of India v. P. Kwihabdulla (1985 (1) LLJ 331). A Division Bench of the Bombay High Court in Damomal Kausomal Baisinghani v. Union of India (AIR 1967 Born. 355) also adopted a more or less similar view when it held that even assuming the impugned order was made by the third respondent in Delhi there can hardly be any doubt that the effect of the said order fell on the petitioner at Uthasnagar where he resides. In L, V. Veeri Chettiar v. Sales Tax Officer (AIR 1971 Mad. 155) a Division Bench of the Madras High Court took the view that if a limb of the bundle of facts available is seen or discernible in one particular place which is a seat of the High Court, then such High Court has power to exercise jurisdiction under Art.226. In this context the court observed that the person primarily affected by the respondent issuing the notices from time to time to the petitioners and calling upon them to produce the accounts of their business carried on in the State of Tamil Nadu and again by proposing to assess them to the best of his judgment on the assumption of certain jurisdictional facts, is the addressee of such notice and such affection relates to the bundle of facts in the totality of the lis or proceeding concerned, and such impact necessarily gives rise to a cause of action, though it may be in part. Thus, it is axiomatic that the arising of a cause of action either in suit or in writ petition is largely depended on the facts of each case and law applicable to them. 8. Thus, it is axiomatic that the arising of a cause of action either in suit or in writ petition is largely depended on the facts of each case and law applicable to them. 8. Let us now examine the 'bundle of facts' involved in the present case in order to ascertain whether the cause of action arose wholly or partly within the State of Kerala. If on facts the cause of action is found to have arisen partly within the territorial limits of State of Kerala, then this court has power to entertain the writ petitions. While the petitioners were working as Salesmen in the office of the Regional Warehouse of the Tamil Nadu Handloom Weavers Co-operative Society Ltd. certain complaints regarding bogus sales were lodged against them by the Society. The memo (Ext. P1 in OP No. 16432/98) is as follows: "Head Office Madras has fixed responsibility among the staff of Regional Warehouse, Ernakulam for the bogus sales effected to Kerala Co-operative Consumers Federation Ltd., by raising credit bill No. 307 dated. 19.3.1988 was realised by cash and remitted in to N. O.R. Account. For confirming the purchase made by the K.S.C.F.C. Ltd., the sales made by Regional Warehouse to the Federation was not reflected. The sale made by raising credit bill No. 307 dated. 19.3.1988 on Kerala State Consumers Co-operative Federation Ltd, is not a genuine as per the enquiry conducted by Manager. Hence the total loss of Rs.19,940/- is ordered for recovery from the staff concerned." In the memo issued by the Ernakulam Regional Office three petitioners were shown as Salesmen, Regional Warehouse, Ernakulam. It is evident form the charge memo, the alleged bogus sales took place at Ernakulam. In the second common charge memo (Ext. P3 in OP 16432/98) it is stated thus "Thiru. C. Pitohaiyan Salesman, Regional Warehouse, Ernakulam in connivance with other responsible staff of Regional Warehouse has raised one Credit Bill No. 307 dated. 19.3.1988 for Rs. 6,37,325/-onKeralaState Consumers Co-operative Federation Ltd., Ernakulam. On enquiry in this connection with the aforesaid Consumers co-op. Federation that they have not received the said credit bill with the stock. Thus, mis is conditioned that Thiru. C. Pitohaiyan Salesman, Regional Warehouse, Ernakulam in connivance with other staff had raised bogus Credit Bill on Kerala State Consumers Co-operative Federation." Ext. 6,37,325/-onKeralaState Consumers Co-operative Federation Ltd., Ernakulam. On enquiry in this connection with the aforesaid Consumers co-op. Federation that they have not received the said credit bill with the stock. Thus, mis is conditioned that Thiru. C. Pitohaiyan Salesman, Regional Warehouse, Ernakulam in connivance with other staff had raised bogus Credit Bill on Kerala State Consumers Co-operative Federation." Ext. P6 in OP 16432/98 also shows that petitioners were instructed to appear the open enquiry at Regional Office, Ernakulam on 9.12.1991 at 11A.M. in connection with bogus credit effected at the Regional Warehouse vide the office memo dated 11.10.1991. From the above it is clear that the facts which resulted in the issue of charge memo against the petitioners took place at Ernakulam. Subsequent issue of notices are integrated to the above facts which constitute the cause of action. When Ext. P10 memo was issued on 3.3.1998 the petitioner in OP 16422/98 was working at Kumbakonam and other two petitioners were working at Alwaye and Angamaly within the State of Kerala. That will not change or alter the character of the underlying causes. Even assuming the enquiry had taken place at Madras, it would not become effective unless the result of the enquiry is made available. Therefore, Ext. P10 memo directing the petitioners to remit the amount is an integral part of the cause of action. What we are primarily concerned is the substance of the matter, namely the bogus sale and misappropriation of funds at Ernakulam and not the form in which the steps were taken to recover the amount involved in misappropriation. In view of the above facts we are of the view that at any rate part of the cause of action had arisen within the territorial limits of this court. 9. In the Writ Appeal No. 2107/98 arising from the judgment in O.P. No. 16432/98 the main prayer is to quash Ext. P10 therein. Ext. P10, as observed above, is a demand notice issued by the Tamil Nadu Handloom Weavers' Co-operative Society Ltd., issued by the Regional Manager, Cochin. The appellant has been directed to remit a sum of Rs. 37,071.90 with interest towards the among misappropriated. In Ext. P11 memo issued to the appellant it is observed as follows: "As per Head Office instruction as sum of Rs. The appellant has been directed to remit a sum of Rs. 37,071.90 with interest towards the among misappropriated. In Ext. P11 memo issued to the appellant it is observed as follows: "As per Head Office instruction as sum of Rs. 37,071.90 with 18% interest towards disallowed Janatha Subsidy amount will be recovered from the Salesman, IS SR, Kumbakonam from July 1998 Salary towards at the rate of rs.500/- per month. He is informed that if his appeal in this regard IS considered later be may get refund of the recovery amount." The counsel for the appellant in this context submits that appeal pending before the Managing Director is a statutory appeal. However we do not propose to go into the merits of the relief claimed in the Writ Petition since the appeal is pending before the Managing Director. Inasmuch as the entertainment of the Writ Petition by this Court has been found legal we are inclined to give a direction to the respondents in the Writ Appeal that Ext. P10 notice shall not be enforced against the appellant till the appeal pending before the Managing Director is finally disposed of. There will be a direction to that effect. 10. In O.P. No. 8182/98 and 7774/98 we do not see any appeal preferred by them pending before the Managing Director. On the other hand, the counsel submits that the appeal filed before the Managing Director had already been dismissed. However, those orders are not before us. Hence we do not propose to decide the contentions raised by the counsel in these two Writ Petitions. If the petitioners have any remedy available to them under the concerned statute against the dismissal of the appeals this judgment will not be a bar for mem to agitate before the appropriate forum if they prefer to do so. The demand notice issued against them by the Regional Manager of the Tamil Nadu Handloom Weavers' Co-operative Society Ltd., Cochin will stand. The Writ Appeal and the Original Petitions are disposed of as above. No order as to costs.