Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1138 (ORI)

Shrabanti Das v. Government of India

2017-10-12

B.R.SARANGI, VINEET SARAN

body2017
JUDGMENT : VINEET SARAN, J. 1. The appellant was serving as an Assistant Manager in NABARD and was posted at Guwahati (Assam). In the year 2014 she fell ill and it is contended that the Medical Officer of NABARD advised that it would be troublesome and risky for her to stay alone at Guwahati and thus the appellant shifted to her native place in Cuttack, Odisha. Since August 2014 she has been staying in Odisha. However, since she has not been attending her duty in Assam, her salary has been stopped w.e.f. October, 2014. She has made representation for her transfer from Assam to any part of the Odisha on medical ground, which has not been acceded/considered by the respondent-Bank. Thus, the appellant filed W.P.(C) No.7117 of 2016 with the prayer for direction to the respondent-Bank to transfer her from Assam to Odisha on medical ground. By order dated 10.05.2016, learned Single Judge dismissed the writ petition on the ground that no part of cause of action has accrued within the territorial jurisdiction of Odisha and merely because the appellant has been staying in the State of Odisha it cannot be said that any part of cause of action has accrued here. Challenging the said order, this writ appeal has been filed. 2. Heard Mr. N.K. Mishra, learned Senior Counsel along with Mr. A. Mishra, learned counsel for the appellant and Mr. B.P. Tripathy, learned counsel for the respondents. Perused the order impugned in this appeal. 3. Mr. N.K. Mishra, learned Senior Counsel appearing for the appellant has submitted that the appellant was advised not to stay alone in Assam and be with her near and dear ones in her native place. It is thus submitted that it was on such advice of the Medical Officer of the respondent-Bank that the appellant has come to her native place in Odisha and as such cause of action has accrued in Odisha because her representations have been sent from Odisha. It has also been submitted that during her stay in Odisha, the appellant was permitted to take promotional interview twice in Bhubaneswar office, Odisha of the respondent bank and, as such, part of cause of action has arisen within the territorial jurisdiction of Odisha. It has also been submitted that during her stay in Odisha, the appellant was permitted to take promotional interview twice in Bhubaneswar office, Odisha of the respondent bank and, as such, part of cause of action has arisen within the territorial jurisdiction of Odisha. To substantiate his contention, he has relied upon the judgment of Special Bench of Delhi High Court in M/s. Sterling Agro Industries Ltd. v. Union of India & Ors., AIR 2011 Delhi 174, and judgment dated 04.08.2015 of this Court in W.P.(C) No. 5845 of 2003 (P.K. Pani v. Chairman & Managing Director), rendered by one of us (Dr. B.R. Sarangi,J), which has been confirmed by the Division Bench of this Court in W.A. No. 543 of 2015 (Chairman & Managing Director, Allahabad Bank v. Shri P.K. Pani) by judgment dated 17.10.2016. 4. Mr. B.P. Tripathy, learned counsel for respondent no.5 justified the order passed by the learned Single Judge and contended that since no part of the cause of action arises in the State of Odisha, as such, no fault can be found with the order of learned Single Judge in dismissing the writ petition on the ground of lack of jurisdiction. 5. In view of the facts and circumstances, as narrated above, the only question to be decided in the instant case is whether this Court has got jurisdiction to entertain the writ application. 6. In Raja Soap Factory v. S.P. Shantharaj, AIR 1965 SC 1449 the apex Court held that by “jurisdiction” is meant the extent of power which is conferred upon the court by its constitution to try a proceedings. 6.1. In CIT V. Pearl Mech Engineering & Foundry Works (P) Ltd., AIR 2004 SC 2345 , the apex court held that the word “jurisdiction” implies the court or tribunal with judicial power to hear and determine a cause, and such tribunal cannot exist except by authority of law. Jurisdiction always emanates directly and immediately from the law; it is a power which, nobody on whom the law has not conferred on, can exercise. 6.2. In Navinchandra N. Majithia v. State of Maharashtra, AIR 2000 SC 29 , the apex Court in paragraphs 7, 8, 33 to 37, has held as follows: “7. Jurisdiction always emanates directly and immediately from the law; it is a power which, nobody on whom the law has not conferred on, can exercise. 6.2. In Navinchandra N. Majithia v. State of Maharashtra, AIR 2000 SC 29 , the apex Court in paragraphs 7, 8, 33 to 37, has held as follows: “7. The object of the amendment by inserting clause (2) in the Article was to supersede the decision of the Supreme Court in Election Commission v. Saka Venkata Subba Rao ( AIR 1953 SC 210 ) (supra) and to restore the view held by the High Courts in the decisions cited above. Thus the power conferred on the High Courts under Article 226 could as well be exercised by any High Court exercising jurisdiction in relation to the territories within which "the cause of action, wholly or in part, arises" and it is no matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High Court. The amendment is thus aimed at widening the width of the area for reaching the writs issued by different High Courts. 8."Cause of action" is a phenomenon well understood in legal parlance. Mohapatra, J. has well delineated the import of the said expression by referring to the celebrated lexicographies. The collocation of the words "cause of action wholly or in part arises" seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspect of the Courts. As per that section the suit could be instituted in a Court within the legal limits of whose jurisdiction the "cause of action wholly or in part arises". Judicial pronouncements have accorded almost a uniform interpretation to the said compendious expression even prior to the Fifteenth Amendment of the Constitution as to mean "the bundle of facts which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court." 33. From the provision in clause (2) of Art. 226 it is clear that the maintainability or otherwise of the writ petition in the High Court depends on whether the cause of action for filing the same arose, wholly or in part, within the territorial jurisdiction of that Court. 34. From the provision in clause (2) of Art. 226 it is clear that the maintainability or otherwise of the writ petition in the High Court depends on whether the cause of action for filing the same arose, wholly or in part, within the territorial jurisdiction of that Court. 34. In legal parlance the expression 'cause of action' is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a Court or a tribunal; a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in Court from another person. (Black's Law Dictionary). 35. In Stroud's Judicial Dictionary a 'cause of action' is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. 36. In 'Words and Phrases' (fourth edition) the meaning attributed to the phrase 'cause of action' in common legal parlance is existence of those facts which give a party a right to judicial interference on his behalf. 37. A Bench of three learned Judges of this Court in the case of Oil and Natural Gas Commission v. Uptal Kumar Basu (1994) 4 SCC 711 : (1994 AIR SCW 3287), considered at length the question of territorial jurisdiction under Art. 226 (2) of the Constitution of India. Some of the relevant observations made in the Judgment are extracted hereunder (Paras 5 and 6 of AIR SCW) : Clause (1) of Art. 226 begins with a non obstante clause - notwithstanding anything in Art. 32 - and provides that every High Court shall have power "throughout the territories in relation to which it exercises jurisdiction", to issue to any person or authority, including in appropriate cases, any Government. "Within those territories directions, orders or writs, for the enforcement of any of the rights conferred by Part III or for any other purpose. Under clause (2) of Art. 226 the High Court may exercise its power conferred by clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. Under clause (2) of Art. 226 the High Court may exercise its power conferred by clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Art. 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. That is at best its case in the writ petition. It is well settled that the expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kour v. Partab Singh,((1889) ILR 16 Cal 98) Lord Watson said : "........... the cause of action has no relation whatever to the defence which may be set up the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground 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." Therefore, in determining the objection of lack of territorial jurisdiction the Court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court." 6.3. In Eastern Coalfields Ltd. v. Kalyan Banerjee, (2008) 3 SCC 456 , the apex Court in paragraphs 7 to 11, observed as follows: 7. “Cause of action”, for the purpose of Article 226(2) of the Constitution of India, for all intent and purport, must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. It means a bundle of facts which are required to be proved. The entire bundle of facts pleaded, however, need not constitute a cause of action as what is necessary to be proved is material facts whereupon a writ petition can be allowed. 8. The question to some extent was considered by a three-Judge Bench of this Court in Kusum Ingots & Alloys Ltd. v. Union of India stating: (SCC p. 261, para 18) “18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.” 9. As regards the question as to whether situs of office of the appellant would be relevant, this Court noticed decisions of this Court in Nasiruddin v. STATE and U.P. Rashtriya Chini Mill Adhikari Parishad v. State of U.P. to hold: (Kusum Ingots case, SCC p. 263, paras 26-27) “26. As regards the question as to whether situs of office of the appellant would be relevant, this Court noticed decisions of this Court in Nasiruddin v. STATE and U.P. Rashtriya Chini Mill Adhikari Parishad v. State of U.P. to hold: (Kusum Ingots case, SCC p. 263, paras 26-27) “26. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad that the situs of issue of an order or notification by the Government would come within the meaning of the expression ‘cases arising’ in Clause 14 of the (Amalgamation) Order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. In fact, a legislation, it is trite, is not confined to a statute enacted by Parliament or the legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instructions issued in this behalf shall also come within the purview thereof. Situs of office of Parliament, legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof. 27. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority.” 10. Kusum Ingots & Alloys Ltd. has been followed by this Court in Mosaraf Hossain Khan v. Bhagheeratha Engg. Kusum Ingots & Alloys Ltd. has been followed by this Court in Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. stating: (SCC p. 669, para 26) “26. In Kusum Ingots & Alloys Ltd. v. Union of India a three-Judge Bench of this Court clearly held that with a view to determine the jurisdiction of one High Court vis-à-vis the other the facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be made and the facts which have nothing to do therewith cannot give rise to a cause of action to invoke the jurisdiction of a court. In that case it was clearly held that only because the High Court within whose jurisdiction a legislation is passed, it would not have the sole territorial jurisdiction but all the High Courts where cause of action arises, will have jurisdiction.” 11. In Om Prakash Srivastava v. Union of India7 this Court held: (SCC p. 211, para 12) “12. The expression ‘cause of action’ has acquired a judicially settled meaning. In the restricted sense ‘cause of action’ means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression 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. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in ‘cause of action’. (See Rajasthan High Court Advocates’ Assn. v. Union of India.)” From the judgments, referred to above, it follows that the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. v. Union of India.)” From the judgments, referred to above, it follows that the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case this High Court has jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of this High Court. 7. In our view, merely because the medical advice for an employee of the Medical Officer not to stay alone and be with the near and dear ones at the native place, would not mean that it is the command from employer to go to her native place. It is just an advice of the Medical Officer and the same cannot be treated as the appellant being on duty or in service within the territorial jurisdiction of Odisha so as to mean that any part of cause of action has arisen. 8. M/s. Sterling Agro Industries Ltd. (supra) is a Special Bench judgment of the Delhi High Court, relied upon by the learned Senior Counsel appearing for the petitioner, which deals with concept of “Forum Conveniens”, which fundamentally means that it is obligatory on the part of the Court to see the convenience of all the parties before it. The convenience, in its ambit and sweep, would include the existence of more appropriate forum, expenses involved, the law relation to the lis, verification of certain facts which are necessitous for just adjudication of the controversy and such other ancillary aspects. The balance of convenience is also to be taken note of. The principle of ‘Forum Conveniens’ in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of “Forum Conveniens”. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of “Forum Conveniens”. But coming to the fact of the said case, it is seen that the industry of the petitioner therein was situate at Bhind, Malanpur in the State of Madhya Pradesh. The initial order was passed by the Asst. Commissioner of Customs ICD, Malanpur, Dist- Bhind(M.P.). The appellate order was passed by the Commissioner (appeals)-I, Customs and Central Excise and Service Tax at Indore (M.P.). Being dissatisfied with the order passed by the revisional authority, the petitioner therein invoked the inherent jurisdiction of the Delhi High Court under Article 226 of the Constitution of India solely on the foundation that the revisional authority, namely, the office of the Joint Secretary to the Government of India, was in Delhi and, therefore, the Delhi High Court had got jurisdiction to deal with the lis in question. Thus, relying upon the various judgments, referred to in the said judgment, the Delhi High Court held that where an order is passed by an appellate authority or a revisional authority, a part of cause of action arises at that place. When the original authority is situated at one place and the appellate authority is situated at another, a writ petition would be maintainable at both the places. As the order of appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate, having regard to the fact that the petitioner therein is dominus litis to choose his forum, and that since the original order merges into the appellate order, the place where the appellate authority is located is also “Forum Conveniens." There is no dispute with regard to the proposition laid down by the Delhi High Court while considering the concept of “Forum Conveniens” in the aforementioned judgment, but such is not the position in the present case. Similarly, in P.K. Pani (supra) it was contended that the petitioner, while serving as Senior Manger in Parel Branch, Mumbai for commission and omission, proceedings were initiated against him and while he was posted at Regional Office, Bilaspur as Senior Manager (Inspection), proceedings were continuing against him and therefore, no part of cause of action would arise within the State of Odisha. Merely because, after removal from service, the petitioner was staying at Bhubaneswar in his permanent address and all correspondences had been made to the said address, that ipso facto could not confer the jurisdiction on this Court to adjudicate the matter and as such, this Court lacked territorial jurisdiction to entertain the writ application. Considering such contention and relying upon the judgment of the apex Court in Eastern Coal Fields Ltd. and Navinchandra N. Majithia (supra) the learned Single Judge of this Court held that since after removal from service all correspondences by the employer of the petitioner in that case had been made in the permanent address of the petitioner, in view of the provisions contained in Article 226(2) of the Constitution of India if cause of action had arisen in more than one Court, any of the Courts where part of cause of action had arisen, would have jurisdiction to entertain the application. The said judgment of the learned Single Judge was assailed before the Division Bench in W.A. No 543 of 2015 and confirmed by judgment dated 17.10.2016 holding that this Court has jurisdiction to entertain the application. But such are not the facts in the present case. Consequentially, in view of the discussions made above, it is evident that the judgments referred to by the learned senior counsel are factually distinguishable from the present case and, as such, the same are not applicable. 9. In our considered view, in the facts of the present case, no cause of action has arisen within the territorial jurisdiction of this Court. The head office of the respondent bank, where representations have been sent by the appellant, is in Mumbai. The appellant has last served in Guwahati (Assam) where she fell ill and thereafter since the year 2014 she has been residing in Cuttack, Odisha. Merely because she is residing in Odisha or may have sent representations to the authorities in Mumbai or Assam from Odisha would not mean that any cause of action has arisen within the territorial jurisdiction of this Court. 10. In such view of the matter, we agree with the view taken by the learned Single Judge that the writ application would not be maintainable on the ground that this Court has no territorial jurisdiction, because no cause of action has arisen within the State of Odisha. 11. The writ appeal is accordingly dismissed.