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2016 DIGILAW 48 (MEG)

Md. Nasimuddin Ansari v. Union of India

2016-11-04

VED PRAKASH VAISH

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JUDGMENT : V.P. VAISH, J. 1. The present petition has been filed by the petitioner, Md. Nasimuddin Ansari seeking writ in nature of mandamus/certiorari by claiming inter-alia, the following reliefs:- i. By setting aside and quashing the impugned charge-sheet dated 30-05-2000 issued by the Respondent No.4 (vide Annexure No.3 to the Writ Petition) ii. By setting aside and quashing the departmental enquiry proceeding and the charges framed against the petitioners; iii. By setting aside and quashing the impugned order dated. 11-3-2003 under Memo No. BRDB/02 (1230/99/GE-II issued by the under Secretary to the Govt. of India, by which the respondents imposed the punishment of withholding the increments of the petitioners, which fell due on 1-6-2003 for a period of 2 years without cumulative effect; (vide Annexure No.15 to the Writ petition) iv. By granting promotional benefits to the petitioner with retrospective effect; 2. Briefly, the facts as culled out from the petition are that the petitioner was appointed as Assistant Executive Engineer under the Border Roads Development Board vide an order dated 20th June, 1990 in the Electrical and Mechanical Cadre after being selected by the Union Public Service Commission (UPSC). 3. The petitioner was thereafter promoted to the post of Executive Engineer in the month of June, 2005 and since then working in that capacity. It is stated that the petitioner was posted at Eastern Base Workshop (EBW), Tezpur, Assam w.e.f. May 1994 to April, 1998 and at that point of time an enquiry was ordered vide order No. 15431/AO/EIB, dated 6th January, 1997 by the Chief Engineer, Project Vartak for finding out the irregularities committed in the Eastern Base Workshop at Tezpur regarding purchase of Category 'A' Spares. It is further stated some minor irregularities were found and the Chief Engineer left all the officers exonerated by giving warning. 4. It is also stated that thereafter on the same allegations the Director General, Border Roads ordered a second court of inquiry vide order dated 1st May, 1997 under the Army Act and Rules. Thereafter, again a Supplementary Court of Inquiry was ordered vide order dated 27th August, 1997. 5. 4. It is also stated that thereafter on the same allegations the Director General, Border Roads ordered a second court of inquiry vide order dated 1st May, 1997 under the Army Act and Rules. Thereafter, again a Supplementary Court of Inquiry was ordered vide order dated 27th August, 1997. 5. On the basis of second court of inquiry, disciplinary proceedings were initiated against the petitioner by framing the impugn charge sheet dated 30th May, 2000 on the allegation that the petitioner while functioning as Local Purchase Officer from July 1996 to 19th April, 1997 abetted and aided the Commander EBW in irregular procurement of category 'A' stores without following due procedure. 6. The petitioner submitted his written reply against the charge sheet on 16th June, 2000 thereby denying the charges. 7. The petitioner further stated that when the Departmental Promotion Committee (DPC) for promotion to the next higher post was held, the name of the petitioner was kept in a sealed cover and the petitioner has not been informed about the outcome of the said DPC. Being aggrieved, the petitioner sent a representation dated 9th October, 1998 to the Ministry of Defence. As no action was taken by the Ministry on the representation of the petitioner, he approached the High Court of Jammu & Kashmir by filing a writ petition being SWP No. 1530/2000. 8. During the pendency of the writ petition, the Enquiry Officer submitted his report dated 28th September, 2001 holding the charges to be partly proved. 9. It is further stated that as the petitioner was transferred out of the jurisdiction of Jammu & Kashmir High Court in the year 2003 he could not communicate with the engaged counsel regularly and the matter got delayed. Thereafter, he filed an application for withdrawal of the writ petition, which was allowed by the High Court of Jammu & Kashmir vide order dated 16th December, 2014 with liberty to file a fresh one, if cause survives. 10. Thus, the petitioner approached this Court by filing the present petition, praying the relief as quoted in paragraph-1 herein above. 11. I have given my anxious thought to the submissions made by learned counsel for the parties and perused the material placed on record. 12. Learned counsel for petitioner urged that the respondent sought opinion of UPSC, and the UPSC gave its opinion vide letter dated 23rd July, 2002. 11. I have given my anxious thought to the submissions made by learned counsel for the parties and perused the material placed on record. 12. Learned counsel for petitioner urged that the respondent sought opinion of UPSC, and the UPSC gave its opinion vide letter dated 23rd July, 2002. The impugned order was passed after considering the opinion of UPSC but the copy of opinion of UPSC was not supplied to the petitioner. Relying upon judgments in the case of Union of India And Others v. R.P. Singh' reported as (2014) 7 SCC 340 and S.N. Narula v. Union of India And Others' reported as (2011) 4 SCC 591 , learned counsel for the petitioner submitted that opinion of UPSC was required to be served upon the petitioner before passing the impugned order. 13. Another submission of learned counsel for the petitioner is that on the same set of charges and identical set of Inquiry report against another officer namely Shri V.V. Rao, SE (E&M) the departmental proceeding was dropped. However, charge sheet was issued against the petitioner only which is in violation of provision of Article 14 and 15 of the Constitution of India. 14. The respondents have taken an objection, and rightly so, that this Court has no jurisdiction to try and entertain the present petition as none of the cause of action has risen within the jurisdiction of this Court. 15. Learned counsel for the petitioner refuted the submissions of the respondent by submitting that petitioner was transferred to Shillong and he was residing at Shillong at the time of filing of petition and therefore, this Court has jurisdiction to entertain and try this petition. 16. The first and foremost question involved in the present petition is as to whether a part of cause of action had arisen within the territorial jurisdiction of this Court so as to entertain a writ petition under Article-226 of the Constitution of India. Article-226 of the Constitution of India as it originally enacted had two-fold limitations on the jurisdiction of High Courts with regard to their territorial jurisdiction. Firstly, the power could be exercised by the High Court "throughout the territories in relation to which it exercises jurisdiction", i.e. the writs issued by the Court cannot run beyond the territories subject to its jurisdiction. Firstly, the power could be exercised by the High Court "throughout the territories in relation to which it exercises jurisdiction", i.e. the writs issued by the Court cannot run beyond the territories subject to its jurisdiction. Secondly, the person or authority to whom the High Court is empowered to issue such writs must be "within those territories", which clearly implied that they must be amenable to its jurisdiction either by residence or locations within those territories. 17. The cause of action was a concept absolutely irrelevant for conferring jurisdiction on the High Courts under Article-226 of the Constitution of India. 18. Article-226 of the Constitution of India was amended by the Constitution (Fifteenth Amendment) Act, 1963 and after Clause 1, new Clause (1-A) was inserted which read as under: "(1-A) 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 powers, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories." 19. At this juncture, it may be mentioned that by the Constitution (Forty-second Amendment) Act, 1976, Clause-(1-A) was renumbered as Clause (2). The underlying object of amendment was expressed in the following words: "Under the existing Article-226 of the Constitution, the only High Court which has jurisdiction with respect to the Central Government is the Punjab High Court. This involves considerable hardship to litigants from distant places. It is, therefore, proposed to amend Article-226. So that when any relief is sought against any Government, authority or person for any action taken, the High Court within whose jurisdiction the cause of action arises may also have jurisdiction to issue appropriate directions, orders or writs." 20. A bare perusal of the amendment clearly shows that the effect of the amendment was that the accrual of cause of action was made an additional ground to confer jurisdiction on a High Court under Article-226 of the Constitution of India. A bare perusal of the amendment clearly shows that the effect of the amendment was that the accrual of cause of action was made an additional ground to confer jurisdiction on a High Court under Article-226 of the Constitution of India. The legislature in its wisdom inserted Clause (1-A) after Clause 1 of Article 226 of the Constitution and after 1963, cause of action is relevant and germane and a writ petition can be instituted in a High Court within the territorial jurisdiction of which cause of action in whole or in part arises. 21. The territorial jurisdiction of a Court and "cause of action" are inter-linked. To decide the question of territorial jurisdiction it is necessary to find out the place where the "cause of action" arose. It may be mentioned that the expression "cause of action' has neither been defined in the Constitution nor in the Code of Civil Procedure, 1908. It may, however, be described as a bundle of essential facts necessary for the plaintiff to prove in order to succeed. The failure to prove such facts would give the defendant a right to judgment in his favour. For every action, there has to be a cause of action. If there is no cause of action, the plaint or petition is liable to be dismissed. The expression "cause of action" has been defined in Cooke v. Gill' reported as (1873) 8 CP 107 wherein Lord Brett observed as under: "'cause of action' means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court." 22. The Hon'ble Supreme Court in the case of Kusum Ingots & Alloys Ltd. v. Union Of India And Another' reported as (2004) 6 SCC 254 defined 'cause of action' as under: "6. Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its important is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily." 23. In the case of State of Rajasthan And Other v. M/s Swaika Properties And Another' reported as (1985) 3 SCC 217 , the Company whose registered office was at Calcutta filed a petition in the High Court of Calcutta challenging the notice issued by the Special Town Planning Officer, Jaipur for acquisition of immovable property situated in Jaipur. Observing that the entire cause of action arose within the territorial jurisdiction of the High Court of Rajasthan at Jaipur Bench, the Hon'ble Supreme Court held that the High Court of Calcutta had no territorial jurisdiction to entertain the writ petition. The Hon'ble Supreme Court further held that mere service of notice on the petitioner at Calcutta under the Rajasthan Urban Improvement Act, 1959 could not give rise to a cause of action unless such notice was 'an integral part of the cause of action'. 24. In another case, Election Commission of India v. Saka Venkata Rao' reported as A.I.R. 1953 SC 210, Hon'ble Supreme Court laid down that a High Court can exercise jurisdiction, under Article-226 of the Constitution of India, only if the person or authority to whom the writ is sought to be issued is located within the territorial limits of the jurisdiction of the High Court. This view was also followed in some subsequent cases. 25. This view was also followed in some subsequent cases. 25. In National Textile Corporation Ltd and Others v. Haribox Swalram and others' reported as (2004) 9 SCC 786 , Hon'ble Supreme Court observed that: "............the mere fact that the writ petition carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta is not an integral part of the cause of action and, therefore, the Calcutta High Court had jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained. In view of the above finding, the writ petition is liable to be dismissed." 26. Recently, Hon'ble Supreme Court has pointed out, in the case of Nawal Kishore Sharma v. Union of India And Others' reported as 2014 (9) Scale 244 , that the question, whether or not cause of action wholly or in part, has arisen within the territorial limit of any High Court, shall have to be decided in the light of the nature and character of the proceedings under Article-226 of the Constitution of India. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court's jurisdiction. 27. In view of the authoritative pronouncement by Hon'ble Supreme Court it is clear that for the purpose of deciding whether facts averred by the petitioner would or would not constitute cause of action, the Court has to consider whether such facts constitutes a material, essential, or integral part of the cause of action. 28. In the instant case, the petitioner was posted in Tezpur, Assam when the enquiry was ordered. The Memorandum and Statement of Articles of Charge framed against the petition were issued from New Delhi. The final enquiry report was also submitted at New Delhi. 29. The averments made in the petition and perusal of documents placed on record reveal that either the "cause of action" arose in Assam or at New Delhi. However, firstly, the petitioner chose to file the petition claiming similar reliefs before the High Court of Jammu & Kashmir. Since he was transferred from the jurisdiction of the Jammu & Kashmir High Court, he withdrew the petition bearing SWP No. 1530/2000 with liberty to file a fresh. However, firstly, the petitioner chose to file the petition claiming similar reliefs before the High Court of Jammu & Kashmir. Since he was transferred from the jurisdiction of the Jammu & Kashmir High Court, he withdrew the petition bearing SWP No. 1530/2000 with liberty to file a fresh. Now, the petitioner is posted within the jurisdiction of this Court, he filed the present petition before this Court whereas none of the cause of action has arisen within the jurisdiction of this Court. 30. The jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court's jurisdiction. It is not permissible to read in Article-226 of the Constitution the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court. 31. In the present case, the facts pleaded by the petitioner do not constitute a part of cause of action within the meaning of Article 226 of the Constitution of India. 32. For the reasons stated above, the present petition deserves to be dismissed and the same is hereby dismissed. However, liberty is granted to the petitioner to approach the appropriate forum, if so desires. Both the parties are left to bear their own cost.