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2018 DIGILAW 83 (KER)

Mohan Singh, S/o. Ganga Bahadur v. Director General/Cisf, Cisf Head Quarters

2018-01-22

P.V.ASHA

body2018
JUDGMENT : 1. The learned Assistant Solicitor General of India raised a preliminary objection as to the maintainability of the writ petition, on the ground that the cause of action did not arise within the jurisdiction of this Court. Hence the preliminary issue was heard. 2. Petitioner is a Constable in Central Industrial Security Force (CISF). He is challenging the orders passed against him in the departmental action. Ext P3 memo of charge was issued to him by the 5th respondent-the Assistant Commandant, CISF Unit, Vishakhapatnam Port Trust, while the petitioner was working in that unit. The petitioner submitted his reply to the 5th respondent. The 5th respondent issued Ext.P5 order finalising the disciplinary action awarding 'censure'. Thereafter, the 4th respondent issued Ext.P4 show cause notice on 04.12.2015 in exercise of his power to review suo motu proposing to enhance the punishment of withholding of one increment for two years which will not have the effect of postponing of future increment in pay. Petitioner submitted Ext.P7 objection on 14.12.2015. But the 4th respondent issued Ext.P8 order on 06.01.2016 enhancing the penalty to withholding of one increment for one year. Petitioner submitted an appeal to the 3rd respondent-the DIG, CISF, at Chennai. He rejected it by Ext.P11 order dated 19.05.2016. Petitioner submitted a revision petition before the 2nd respondent-the Inspector General of CISF at Chennai. By Ext.P12 order dated 17.03.2017, the 2nd respondent rejected it. 3. Petitioner submits that he worked at Visakhapatnam from 06.08.2015 till 19.1.2016 and from 20.01.2016 to 17.03.2017 he was at Kayamkulam within the jurisdiction of this Court. Petitioner also states that he preferred appeal and revision to respondents 3 and 2 and they passed Exts.P11 and P12 orders while he was working in Kayamkulam within the territorial jurisdiction of this Court. 4. The contention of the petitioner is that he received Ext.P11 appellate order while working within Kerala. He submitted revision petition while working in Kerala. Ext.P12 was also communicated to him while working at Kayamkulam. Therefore, part of the cause of action arose within Kerala. Being an employee working in Kerala under the respondents who are having offices all over India, and as he is a serving member of the CISF, the petitioner claims that the writ petition is maintainable before this Court. 5. In view of the rival contentions, it is necessary to have a look at Article 226 of the Constitution of India. Being an employee working in Kerala under the respondents who are having offices all over India, and as he is a serving member of the CISF, the petitioner claims that the writ petition is maintainable before this Court. 5. In view of the rival contentions, it is necessary to have a look at Article 226 of the Constitution of India. “226. Power of High Courts to issue certain writs.—(1) Notwithstanding anything in Article 32, 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, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (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.” The learned Counsel for the petitioner argued that he received the appellate order while working in Kerala. As the original order merged with appellate order and he is affected by them while working in Kerala, part of the cause of action arose in Kerala, as held in para.27 of the judgment in Kusum Ingots and Alloys Ltd V Union of India: (2004)6SCC 254. 6. But on a reading of the judgment it would show that the Apex Court in Kusum Ingott's case held that the writ petition will lie either at the place of original authority or at the place of appellate authority. In the present case the original authority as well as appellate authority are outside the State, both are at Chennai. Therefore, the aforesaid judgment does not help the petitioner in this case. It was held that when the original authority is constituted at one place and the appellate authority at another place, writ petition would be maintainable at both the places. 7. Therefore, the aforesaid judgment does not help the petitioner in this case. It was held that when the original authority is constituted at one place and the appellate authority at another place, writ petition would be maintainable at both the places. 7. In Nawal Kishore Sharma v. Union of India, (2014) 9 SCC 329 , the Apex Court, held as follows: “13. In Union of India v. Adani Exports Ltd. (2002)1SCC 567, this Court held that in order to confer jurisdiction on a High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the Court to decide the dispute and the entire or a part of it arose within its jurisdiction. Each and every fact pleaded by the respondents in their 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 are such which have a nexus or relevance with the lis i.e. involved in the case.” 8. After referring to the Full Bench judgment of this Court in Nakul Deo Singh V Union of India: 1999 (3) KLT 629 , the Full Bench of this Court in the judgment in Indian Maritime University V Viswanathan: 2014(4) KLT 798 observed that when the action complained of takes place outside the jurisdiction and the appeal also is rejected by an authority outside the jurisdiction, cause of action wholly arises out of the jurisdiction. 9. Pointing out para.22 of judgment in Nakul Deo Singh's case the learned CGC argued that even in the case of a serving employee, position was the same as that of a dismissed employee. 10. In Nakul Deo Singh's case one of the cases which came up for consideration was that of a Head Constable in the CISF Unit at Bokkaro. He was issued with the charge memo at Bokoro. After conducting an enquiry there itself, he was awarded a punishment of reduction in rank. That order was served while he was working at Bokkaro. He filed an appeal before the Deputy Inspector General, at Bokkaro. He was issued with the charge memo at Bokoro. After conducting an enquiry there itself, he was awarded a punishment of reduction in rank. That order was served while he was working at Bokkaro. He filed an appeal before the Deputy Inspector General, at Bokkaro. That appeal was dismissed by the Appellate Authority by order dated 4.3.1995, which was served on the petitioner while he was working as a Naik in the CISF Unit at HNL Kottayam within the territorial jurisdiction of this High Court. After reverting him as a Naik, he had been transferred to this State. When he received the order of the Appellate Authority dismissing his appeal, he was working within the jurisdiction of this Court. The Full Bench considered the question whether the factum of receipt of the appellate order within the territory of this Court would enable the petitioner to invoke the jurisdiction of this Court. 11. In paragraphs 21 and 22 it was held as follows: “Similarly, when an appeal is filed by him to an appellate authority who is outside the jurisdiction of this High Court and that appeal is dismissed by the appellate authority, the merger in the decision of the Appellate Authority takes place when the appeal is dismissed and not when the appellant receives the order. What a writ petitioner need plead as a part of his cause of action is the fact that his appeal was dismissed wholly or in part and not the fact that the order was communicated to him. That plea is relevant only to show when the right of action arose in his favour. The receipt of the order only gives him a right of action on the already accrued cause of action and enables him to meet a plea of laches or limitation raised in opposition. That the consequences of a proceeding in the larger sense are suffered by a person in his native place is not a ground to hold that the High Court within the jurisdiction of which the native place is situate is also competent to entertain a Writ Petition under Art 226 of the Constitution. When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant time and not in his native place to which he might have retired on his dismissal. 22. When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant time and not in his native place to which he might have retired on his dismissal. 22. In the cases before us, consequences of the order of the original authority were suffered by the respective petitioners outside the State. One was dismissed and the other was reduced in rank. Thereafter they filed appeals before the appellate authority whose offices are in Delhi. One of the petitioners had come back to his native place in Trivandrum on his losing the job and from there, he received the copy of the order dismissing his appeal. In the other, after suffering reduction in rank from outside the State, the petitioner had obtained a transfer to the State within the jurisdiction of this court He had also suffered the punishment while he was outside the territory of this High Court Merely because he was working in Kerala at the time when he received the copy of the appellate order dismissing his appeal cannot be said to be part of the cause of action to challenge the appellate order. In both these cases therefore we have no hesitation in holding that no part of the cause of action arose within the jurisdiction of this High Court. The objection raised in that behalf by the respondents is well founded.” 12. It was held that this Court does not have jurisdiction. The subsequent Full Bench of this Court endorsed that view in its judgment in Marytime University's case. Therefore, it has to be held that no part of the cause of action much less any integral part of the cause of action, has arisen within the territorial jurisdiction of this Court justifying the entertainment of this writ petition. 13. In the light of the judgment of the Full Bench of this Court Nakul Deo Singh, where the factual circumstances were more or less similar, I find that in the present case where the petitioner who was imposed the penalty of censure by the 5th respondent at Visakhapatnam, thereafter the enhanced penalty by way of suo motu review by the 4th respondent also at Visakhapatanam followed by the affirmation of those proceedings by respondents 3 and 2 at Chennai would show that the cause of action arose outside the jurisdiction of this Court. The fact that the petitioner was working in Kerala at the time when he filed appeal against the order of the 4th respondent or that the orders of respondents 3 and 2 were communicated to the petitioner while he was working at Kayamkulam or that the petitioner is an employee under an employer who has got offices in Kerala and all over India or that the petitioner is one continuing in service will not confer jurisdiction on this Court to entertain this Writ Petition under Article 226 of the Constitution of India. 14. The judgment in W.P.(C) No.9056 of 2016 or the judgment in W.A.No.408 of 2016 relied on by the learned Counsel for the petitioner do not apply in the factual circumstances of this case. As the preliminary issue is found against the petitioner, the Writ petition is dismissed as not maintainable. The petitioner would be free to move the appropriate forum.