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2019 DIGILAW 92 (ORI)

Bank Of India v. Purna Chandra Kanungo

2019-02-05

J.P.DAS, S.K.MISHRA

body2019
JUDGMENT S.K. Mishra, J. - Heard Mr. G.A.R. Dora, learned Senior Counsel appearing for the appellants and Mr. P.K. Parhi, learned counsel appearing for the sole respondent. 2. The Bank of India through its officer calls in question the correctness of the combined judgment passed on 19.01.2016 by the learned Single Judge, thereby holding that the High Court of Orissa has territorial jurisdiction to decide the matter in question in W.P.(C) No. 8943/2014 and W.P.(C) No. 20270/2012. Though a combined judgment has been passed in both the writ petitions holding that the High Court of Orissa has jurisdiction to decide the case, one single appeal has been preferred by the Bank. In any case, this being a defect of form, we are inclined to entertain the single intra-court appeal filed in the Court. In fact, in the W.P.(C) No. 8943/2014, the sole-respondent prayed to quash the Annexure-5, which was a direction to recover gratuity amount of Rs. 3,82,650/-, which has been appropriate towards loss caused to the Bank and W.P.(C) No 20270/2012 has been filed to quash the order of punishment imposed by the Disciplinary Authority on 19.11.2008. 3. Mr. Dora, learned Senior counsel for the appellants, at the outset, submits that the learned Single Judge proceeded under a mistaken impression regarding the facts of the case and therefore he has come to a wrong conclusion. He relies upon the case of Nawal Kishore Sharma vs. Union of India and others, (2014) 9 SCALE In fact, that case goes against the case of the respondent and it has been wrongly relied upon by the learned Single Judge. At paragraph-19 of the aforesaid judgment, the Hon'ble Supreme Court has held as follows:" 19. Regarding being had to the discussion made herein above, there cannot be any doubt that the question whether or not cause of action wholly or in part for filing a writ petition has arises within the territorial limit of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. 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." 4. 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." 4. Thus, it is apparent that in order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondent within the territorial limit of the Court's jurisdiction. There is no such averment in the writ applications. 5. Secondly, it is seen that at paragraph-7 and 8, the learned Single Judge has proceeded to hold that the contention raised by Mr. Dora is absolutely misconceived statement. It is appropriate to take note of the exact words used by the learned Single Judge. It reads as follows: "7. The contention raised by Mr. G A R. Dora, learned Senior Counsel appearing for opposite party no.3 that no part of cause of action having arises in the home State of Odisha, the writ petition is not maintainable is a absolutely a misconceived statement. 8. On perusal of the record, it appears that the orders passed by Disciplinary Authority as well as the appellate authority vide Annexures-16 and 17 at page 175 and 183 of the brief respectively indicate that the same had been served on the petitioner at Hyderabad. So far as the order passed by the reviewing authority in Annexure-23 at page 239 of the brief is concerned, the same has been served in the home address of the petitioner. The contention raised by Mr. G.A.R. Dora, learned Senior Counsel that the reviewing authority has called upon the petitioner to receive the review order at Hyderabad is not borne out on the record. Rather the record speaks that the same has been served on the petitioner at his home address at Bhubaneswar." Underlined to add emphasis. 6. Mr. Dora, learned Senior Counsel for the appellants brought attention of the Court to Annexure-22 of the W.P.(C) No. 20270/2012. It is a letter sent by the sole respondent to the Bank on 11.10.2012. Rather the record speaks that the same has been served on the petitioner at his home address at Bhubaneswar." Underlined to add emphasis. 6. Mr. Dora, learned Senior Counsel for the appellants brought attention of the Court to Annexure-22 of the W.P.(C) No. 20270/2012. It is a letter sent by the sole respondent to the Bank on 11.10.2012. In order to administer that the learned Single Judge was committed error of fact, it is appropriate to quote the entire contents of the letter: " (By Speed Post) To The Chairman & Managing Director Bank of India, Head Office Star House, Plot C-5, G-Block, Bandra (E), Mumbai -400051 Respected Sir, Ref: Non-receipt of you office communication Pertaining to my Review Petition pending with you. I have been communicated over phone /mobile that some official communication from your office addressed to me has been received by the Chief Manager, Bank of India, Secunderabad Branch through Zonal Office, Hyderabad. I have been advised by our Zonal Officer / Secunderabad Branch to collect the said letter of Head Office personally under acknowledgement at Secunderabad. As I am presenting residing at my home town Bhubaneswar, it is not practicable to go to Hyderabad to collect the said letter in person in view of my present financial constraints and ill health. I would, therefore, request you to instruct your Seconderabad Branch / Zonal Office Hyderabad to forward the said official letter issued from Head Office at my permanent home address at Bhubaneswar which is already available in your records. For the sake of repetition, I once again furnish my home address hereunder. With kind regards, Yours sincerely, Sd /- (P.C. Kanungo) Plot No. 2084, Sabar Sahi Lane, Budheswari Colony, Bhubaneswar- 751006 Odisha State." 7. Therefore, the factual findings that the contention raised by Mr. Dora, learned Senior Counsel appearing for the appellants that the reviewing authority has called upon the petitioner to receive review letter at Hyderabad are not brought out from the record and are completely erroneous. Since the learned Single Judge has proceeded on erroneous assumption of fact, we set aside the combined judgment passed by him on 19.01.2016 in both the writ petitions and remand back the matter to the learned Single Judge for reconsideration of the preliminary issue of jurisdiction. 8. Since the learned Single Judge has proceeded on erroneous assumption of fact, we set aside the combined judgment passed by him on 19.01.2016 in both the writ petitions and remand back the matter to the learned Single Judge for reconsideration of the preliminary issue of jurisdiction. 8. While disposing of this appeal, we may also take into consideration paragraph-19 of the case of Nawal Kishore Sharma (supra) and the case of Alchemist Ltd. and another vs. State Bank of Sikkim and others, (2007) 11 SCC 335 , where at paragraph-25, the Hon'ble Apex Court has held that the test is whether a particular fact (s) is (are) of substance and can be said to be material, integral or essential part of the lis between the parties, if it is, it forms part of cause of action. It is not not, it does not form a part of cause of action. The Hon'ble Apex Court further held that it is also well settled that in determining the question, the substances of the matter and not the form thereof has to be considered. 9. With such observation, the Writ Appeal is allowed. There shall be no orders as to the costs. 10. Urgent certified copy of this order be granted as per rules Writ appeal allowed.