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2003 DIGILAW 97 (CAL)

Sukanta Mitra v. Union of India

2003-03-05

Bhaskar Bhattacharya

body2003
JUDGMENT Bhaskar Bhattacharya, J. By this writ application a dismissed employee of the Border Security Force has challenged the order of dismissal which has since been affirmed by the Appellate Authority as well as by the Director General, Border Security Force, a reviewing authority. 2. There is no dispute that all the respondents are staying outside the territorial jurisdiction of this Court and at the same time, the order of dismissal was passed against the petitioner when he was posted in Rajasthan. 3. In view of such fact, the learned counsel appearing on behalf of the respondents has taken a preliminary objection as regards the maintainability of this writ application on the ground that this Court has no territorial jurisdiction to entertain this writ application. 4. The learned Advocate appearing on behalf of the petitioner, on the other hand, has submitted that although all the respondents are staying outside the territorial limit of this Court, the cause of action of the instant writ application has partly arisen within the jurisdiction of this court where the petitioner is actually staying. According to the petitioner, the order of the respondent/authority having been served upon him in the State of West Bengal and he having preferred the review application by sending his memorandum from the aforesaid State, this Court has territorial jurisdiction over the subject matter of the writ application. 5. The only question thus falls for preliminary determination is whether this Court has territorial jurisdiction to entertain this writ application even if all the allegations made in the writ application are presumed to be true. 6. In support of his contention, the learned Advocate for the petitioner has drawn attention of this Court to the following decisions: a) Raichand & Co. & Anr. vs. Director General of Foreign Trade & Ors., reported in 1998 (1) CLJ425. b) Union of India & Ors. vs. Hindustan Aluminium Corporation Limited & Anr., reported in AIR 1983 Calcutta 307. c) Chairman & Managing Director, Punjab National Banll & Ors. vs. Dilip Kumar De, reported in 1987 (1) CLJ 354 . d) Union of India & Ors. vs. P. Kunhabdulla, reported in 1984 (3) SLR 426 (Kerala). e) Bharat Colling Coal Limited vs. Jlzaria Taillies & Cold Storage Private Limited, reported in 1992 (II) CHN 80 . 7. c) Chairman & Managing Director, Punjab National Banll & Ors. vs. Dilip Kumar De, reported in 1987 (1) CLJ 354 . d) Union of India & Ors. vs. P. Kunhabdulla, reported in 1984 (3) SLR 426 (Kerala). e) Bharat Colling Coal Limited vs. Jlzaria Taillies & Cold Storage Private Limited, reported in 1992 (II) CHN 80 . 7. The learned Advocate appearing on behalf of the respondents has, on the other hand, placed reliance upon the following decisions: a) Union of India & Ors. vs. Adani Exports Ltd. & Anr., reported in AIR 2002 SC 126 . b) State of Rajasthan & Ors. vs. Swailw Properties & Anr., reported in AIR 1985 SC 1289 . c) Naill Nalwl Deb Singh vs. Deputy Commandant (CIS.F.) Kottayam & Ors., reported in 2000 Lab.I.C. 464 (Kerala Full Bench). 8. In the case of Raiclwnd & Co. & Anr. vs. Director General of Foreign Trade & Ors. (supra), the writ petitioners challenged the constitutional validity of a statutory notification issued under a central statute having application throughout the country. The petitioner had its place of business within the jurisdiction of this Court. Under such circumstances, a learned Single Judge of this Court held that by virtue of the said Central statute the petitioner having suffered within the State of West Bengal, this Court had jurisdiction. 9. In the case of Union of India & Ors. vs. Hindustan Aluminium Corporation Ltd. (supra), the impugned order fixing the selling price and the retention price of Aluminium was fixed by the Central Government at Delhi. However, although the petitioner had the factory located outside West Bengal, the Head Office was situated at Calcutta. The petitioner/company alleged that it suffered losses at Calcutta as direct consequence of the impugned order. Under such circumstances, it was held that part of cause of action had arisen at Calcutta and therefore, Calcutta High Court had territorial jurisdiction. 10. In the case of Chairman & Managing Director, Punjab National Bank & Ors. vs. Dilip Kumar De, (supra), a bank employee was suspended for criminal case pending at Rajasthan and Bihar. The suspension order was passed by Delhi Head Office but the suspended employee was residing in Calcutta wherefrom he was making correspondence with the Bank authority. 10. In the case of Chairman & Managing Director, Punjab National Bank & Ors. vs. Dilip Kumar De, (supra), a bank employee was suspended for criminal case pending at Rajasthan and Bihar. The suspension order was passed by Delhi Head Office but the suspended employee was residing in Calcutta wherefrom he was making correspondence with the Bank authority. He was also drawing subsistence allowance from Calcutta and in recognition of the said right, the bank had arranged for payment of subsistence allowance to the writ petitioner from the bank in Calcutta. Under such circumstances, it was held that part of cause of action had arisen in the State of West Bengal. 11. In the case of Union of India & Ors. vs. P. Kunhabdulla (supra) it was held by a Division Bench of Kerala High Court that an order of removal service if communicated to the employee within a jurisdiction of particular Court, that Court is entitled to entertain the writ application challenging the order of removal. 12. In the case of Bharat Coking Coal Limited vs. Jharia Talkies & Cold Storage Private Limited, (supra) a Division Bench of this Court held that since the respondent No.3 had its office within the jurisdiction of this Court, it could entertain the writ application notwithstanding the fact that no part of cause of action had arisen within the State of West Bengal. However, in spite of such finding, the Court refused to entertain the application on the ground that the order impugned was passed by the Collector, Dhanbad and that at one stage, the matter had gone up to Patna High Court which had occasion to deal with a very vital aspect of the matter and had arrived at the definite finding that the right, title and interest in the property in question had vested in M/s. Bharat Coking Coal Ltd. and in that view of the matter, the Court refused to entertain the writ application. 13. I now propose to deal with the decisions cited by Mr. Goswami, appearing on behalf of the respondents. 14. In the case of State of Rajasthan & Ors. vs. Swaika Properties & Anr.(supra), land situated in Rajasthan was acquired and a notice under Rajasthan Act was served upon the petitioners in West Bengal. 13. I now propose to deal with the decisions cited by Mr. Goswami, appearing on behalf of the respondents. 14. In the case of State of Rajasthan & Ors. vs. Swaika Properties & Anr.(supra), land situated in Rajasthan was acquired and a notice under Rajasthan Act was served upon the petitioners in West Bengal. Under such circumstances the Supreme Court was of the view that service of notice does not give rise to any cause of action in West Bengal and as such, the writ application could not be entertained by Calcutta High Court. 15. In the case of Union of India & Ors. vs. Adani Exports Ltd. & Anr. (supra), the Apex Court held that in order to confer jurisdiction on a High Court to entertain a writ application, the High Court must be satisfied from the entire facts pleaded in support of the 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. Each and every fact pleaded in the application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Court's territorial jurisdiction unless those facts pleaded have a 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 concerned. 16. In the case of Naik Nakul Deb Singh vs. Deputy Commandant (C.I.S.F.) (supra) a Full Bench of Kerala High Court has held that receipt of communication by itself does not constitute the cause of action. At best, receipt of the order of communication only gives a right of action based on cause of action arising out of the action complained of. At best, receipt of the order of communication only gives a right of action based on cause of action arising out of the action complained of. When a cause of action takes place outside the territorial jurisdiction of the High Court and the appeal therefrom is dismissed by the appellate authority located outside the jurisdiction of the High Court, cause of action wholly arises outside the jurisdiction of the High Court and Article 226(2) of the Constitution cannot be invoked to sustain the writ petition on the basis that a part of cause of action has arisen within the jurisdiction of the Court merely because the appellate authority's order was communicated and received while the petitioner was residing within the jurisdiction of the Court. 17. On consideration of the aforesaid decisions, it is, therefore, clear that a writ jurisdiction under Article 226 of the Constitution of India can be invoked by a High Court under two circumstances. First, if any of the respondents resides within the territorial limit of such court. In such a case, notwithstanding the fact that the cause of action has arisen wholly outside the jurisdiction, the said Court can entertain the writ application. Secondly, even if none of the respondents resides within the territorial limit of the High Court, such Court can entertain the writ application if part of cause of action arises within the State. 18. In the instant case, undisputedly all the respondents are residing out side the territorial limit of this Court. Therefore, this court can entertain this application only if any part of cause of action has arisen within this State. I have already pointed out that admittedly the petitioner was working at Rajasthan and disciplinary proceedings were initiated and disposed of also in Rajasthan. The communication of final order to the petitioner within this State cannot have any relevancy in the matter of cause of action of the dispute as pointed out by the Supreme Court. Therefore, merely because the petitioner has received the communication in State of West Bengal that fact alone cannot give authority to this Court to entertain such a writ application for the purpose of adjudicating whether there is any infirmity in the order of dismissal. 19. I thus hold that this Court has no territorial jurisdiction to entertain this writ application and the same is accordingly dismissed on that ground alone. 19. I thus hold that this Court has no territorial jurisdiction to entertain this writ application and the same is accordingly dismissed on that ground alone. I make it clear that I have not gone into the merit of the writ application and the rejection of this application will not stand in the way of the petitioner in seeking his relief before appropriate forum. There will be, however, no order as to costs. Writ application dismissed.