CWP No. 13728 of 2010 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 13728 of 2010 Date of Decision : August 20, 2010 CT Sanjay Singh .......... Petitioner Versus Union of India & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. D.S. Patwalia, Advocate for the petitioner in CWP No. 13728 of 2010. Mr. C.M. Sharma, Central Govt. Standing Counsel. Mr. H.P. Verma, Advocate for the petitioner in CWP No. 9796 of 2010. Mr. D.S. Bisnoi, Central Govt. Standing Counsel for respondents No. 1 to 3 in CWP No. 9796 of 2010. Mr. R.K. Saini, Advocate for Mr. G.S. Hooda, Advocate for respondent No.4 in CWP No. 9796 of 2010. Mr. Rajeev Anand, Advocate for the petitioner in CWP No. 16482 of 2009. Ms. Geeta Singhwal, Central Govt. Standing Counsel for the respondents in CWP No. 16482 of 2009. **** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? Yes. 3. Whether the judgment should be reported in Digest? Yes. ***** CWP No. 13728 of 2010 -2- ***** VINOD K. SHARMA, J. This judgment shall dispose of three civil writ petitions i.e. CWP No. 137281 of 2010 titled CT Sanjay Singh Vs. Union of India & others, CWP No. 9796 of 2010 titled Dhiraj Kumar Vs. Union of India & others and CWP No. 16482 of 2009 titled Sanjay Kumar (Force No. 071800059, Ex. Recruit/ Driver) Vs. Union of India & others, as preliminary issue to be decided in these cases is “Whether the Punjab & Haryana High Court has the jurisdiction to entertain and try these writ petitions? Mr. C.M. Sharma, learned Addl. Standing counsel for the Union of India has accepted notice on behalf of the Union of India. CT Sanjay Singh, petitioner has invoked the writ jurisdiction of this Court under Articles 226/227 of the Constitution of India seeking a writ in the nature of certiorari for quashing the order dated 31.12.2008 Annexure P-11, dispensing with the services of the petitioner, and the order dated 10.7.2010 Annexure P-12, vide which the representation filed against the order was dismissed. The petitioner also seeks the writ of mandamus, directing the respondents to allow the petitioner to join back the duty, with all consequential benefits. The impugned order Annexure P-11 was passed by the Office of the Commandant : THQ 193 BN BSF : KOMKEIRAP:C.C.PUR (MANIPUR). In the impugned order it was mentioned, that the petitioner if aggrieved by the order could make a petition to the Inspector General Ftr Hqr BSF M&C within three CWP No. 13728 of 2010 -3- ***** months from the date of receipt of the impugned order. The representation moved by the petitioner was rejected vide Annexure P-12 by the Headquarters Jammu Frontier, Border Security Force, Plaoura Camp Jammu (J&K) on 10.7.2010. Mr. D.S. Patwalia, learned counsel for the petitioner while admitting that the impugned orders were not passed within the territorial jurisdiction of this Court, contended, that part of the cause of action had accrued to the petitioner within the territorial jurisdiction of this Court. The petitioner had applied for sanction of casual leave for 20 days from 29.8.2008 to 17.9.2008, on account of death of his father. On account of this, the petitioner went into depression and was treated at his place of residence, and was subsequently declared fit to join duty, but he was not allowed to do so, having been dismissed from service. The petitioner's case is that the petitioner was treated at Pandit Bhagwat Dayal Sharma P.G.I.M.S. Rohtak, Haryana for the ailment. The petitioner also placed reliance on the certificate issued by the Panchayat supporting the stand of the petitioner, that his absence was for the reasons beyond his control. The learned counsel for the petitioner, therefore, contended, that these facts also constitute part of cause of action, this Court will have the territorial jurisdiction to entertain and try the writ petition. Mr. C.M. Sharma, learned standing counsel for the Union of India, however, contended, that mere treatment within the territorial jurisdiction could not be a cause of action, as it is merely a defence to the action taken against the petitioner. Therefore, no CWP No. 13728 of 2010 -4- ***** cause of action accrued within the territorial jurisdiction of this Court. This Court, therefore, has no jurisdiction to entertain and try the present writ petition. In CWP No. 16482 of 2009 titled Sanjay Kumar Vs. Union of India & others, Sanjay Kumar, petitioner has challenged the order of his termination passed by the office of Additional Deputy Inspector General, CRPF, Bilaspur (Chhattisgarh) Annexure P-1. The appeal filed against the impugned order was dismissed by the office of the Inspector General, Special Sector, CRPF, Old Secretariat, Delhi-54. The representation made thereafter was also rejected by the Directorate CRPF, Block No.1, Central Offices Complex, Lodhi Road, New Delhi. In this case again no cause of action had arisen to the petitioner to invoke extra ordinary jurisdiction of this Court. The petitioner invoked the jurisdiction of this Court, on the ground, that the impugned order of termination was conveyed to the petitioner within the territorial jurisdiction of this Court. Ms. Geeta Singhwal, learned Central Govt. Standing Counsel appearing on behalf of the Union of India, challenged the territorial jurisdiction of this Court, to entertain and try the writ petition, on the ground, that no cause of action accrued to the petitioner within the territorial jurisdiction of this Court, as the communication of order can not be said to be a cause of action. In CWP No. 9796 of 2010 titled Dhiraj Kumar Vs. Union of India & others, petitioner Dhiraj Kumar by way of this writ petition CWP No. 13728 of 2010 -5- ***** challenged the order Annexure P-11 passed by the office of Police Deputy Inspector General, Group Centre, CRPF Agartala, vide which the petitioner was held ineligible for the post of Constable / Driver. The case of the petitioner was, that the authority issued appointment letter Annexure P-6 from Agartala. Prior to cancellation of his appointment, but was directed to be sent back for verification of his driving licence. The impugned order was passed at Agartala. The petitioner again claimes the jurisdiction, on the ground of conveyance of letter of rejection, within the territorial jurisdiction of this Court. Mr. D.S. Bisnoi, learned Central Govt. Standing Counsel, on the other hand, contended, that this Court has no territorial jurisdiction to entertain and try this writ petition, as no part of cause of action arose within the territorial jurisdiction of this Court. The question to be decided in these cases is with regard to the territorial jurisdiction of this Court to entertain the writ petitions. In support of the plea, that this Court has the territorial jurisdiction, as the order of punishment was conveyed to the petitioners, within the territorial jurisdiction of this Court, reliance was placed on the Division Bench judgment of this Court in the case of Ex. Capt. Yaspal UC-43335) Vs. Union of India and others 1999 (2) RSJ 726, wherein the Hon'ble Division Bench of this Court held, that the petitioner, a Captain in the army was tried and sentenced to be dismissed from service, while he was posted in U.P., but the statutory representation / appeal was submitted by the petitioner, CWP No. 13728 of 2010 -6- ***** from his home town to the authorities, and that the order of rejection was conveyed by the authorities from Delhi to the petitioner at Thanesar, therefore, this Court had the jurisdiction to entertain and try the writ petition. Reliance was also placed on the judgment of this Court in the case of Lt. Col. (Now Major) Gian Singh Dhillon Vs. Union of India and others 2007(2) S.C.T. 197, wherein this Court was pleased to lay down, that mere passing of an order of sentence at Nalagarh, was not an effective order, as cause of action arose to the petitioner when it was communicated to him after being confirmed and promulgated, therefore, this Court had the territorial jurisdiction to try the writ petition. Reliance was thereafter placed on the judgment of this Court in the case of Ex.-Sepoy Dhian Singh Vs. Union of India & Others 2010(1) S.C.T. 314, wherein this Court held, that the petitioner was discharged from the Army on account of disability while working in U.P. All communications with regard to his disability pension were received at his place of residence in Punjab, and the final appeal was also filed by the petitioner from Punjab. The order rejecting the appeal was received in Punjab, therefore, this Court had the territorial jurisdiction to entertain the writ petition. Reliance thereafter was placed on the judgment of this Court in the case of Dalip Singh Rishi Vs. Union of India 1992(3) S.C.T. 666, wherein again this Court held, that as the impugned order was received from Navi at Barnala, therefore, this Court had the territorial jurisdiction to entertain the writ petition. CWP No. 13728 of 2010 -7- ***** Thereafter, reliance was placed on the Division Bench judgment of this Court in the case of Kamaljit Kaur Vs. Union of India 1998(1) S.C.T. 312, wherein this Court was pleased to lay down, that though the husband of the petitioner expired in the Military Hospital at Jaipur, she was granted family pension within the jurisdiction of Punjab & Haryana High Court. Pension was thereafter stopped, when she was residing within the territorial jurisdiction of the Punjab & Haryana High Court, therefore, this Court had the territorial jurisdiction to entertain and try the writ petition. There can be no dispute to the proposition laid down in the judgment of this Court in Kamaljit Kaur Vs. Union of India (supra) as the cause of action accrued to the petitioner within the territorial jurisdiction of this Court, as the pension of the widow was stopped while she was residing within the territorial jurisdiction of the Punjab & Haryana High Court. This Court, therefore, had the jurisdiction, as the pension payable to the petitioner was within the territorial jurisdiction of this Court. It is well settled principle of law, that the debtor has to find the creditor, therefore, a person, who is entitled to receive pension at the place of residence, the rejection or stoppage of pension will give cause of action to the petitioner, to invoke jurisdiction of Court of residence. This proposition of law has no application to the facts of these cases. The learned counsel appearing on behalf of the petitioners also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Navinchandra N. Majithia Vs. State CWP No. 13728 of 2010 -8- ***** of Maharashtra 2000(4) R.C.R.(Criminal) 30, wherein the expression “cause of action” has been defined to mean as under :- “9. Even in the context of Article 226(2) of the Constitution this court adopted the same interpretation to the expression “cause of action wholly or in part arises” vide State of Rajashtan v. Swaika Properties, 1985(3) SCC 217. A three Judge Bench of this Court in Oil and Natural Gas Commission v. Utpal Kumar Basu and another, 1994(4) SCC 711 observed that 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. Having given such a wide interpretation to the expression Ahmadi, J. (as the learned Chief Justice then was) speaking for M.N. Venkatachalliah, CJ., and B.P. Jeevan Reddy, J., utilised the opportunity to caution the High Courts against transgressing into the jurisdiction of the other High Courts merely on the ground of some insignificant event connected with the cause of action taking place within the territorial limits of the High Court to which the litigant approaches at his own choice or convenience. The following are such observations : “If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the court, certain members of the court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the CWP No. 13728 of 2010 -9- ***** cause of action, had occurred within the jurisdiction of the said court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We hope that we will not have another occasion to deal with such a situation.” Reliance thereafter was placed by the learned counsel for the petitioner on the judgment of the Hon'ble Supreme Court in the case of M/s Kusum Ingots & Alloys Ltd. Vs. Union of India and another 2004(6) S.C.C. 254, wherein the Hon'ble Supreme Court was pleased to lay down as under :- “ Lt. Col. Khajoor Singh Vs. The Union of India and Another 1961 (2) SCR 828 whereupon the learned counsel appearing on behalf of the appellant placed strong reliance was rendered at a point of time when clause (2) of Article 226 had not been inserted. In that case the Court held that the jurisdiction of the High Court under Article 226 of the Constitution of India, properly construed, depends not on the residence or location of the person affected by the order but of the person or authority passing the order and the place where the order has effect. In the latter sense, namely, the office CWP No. 13728 of 2010 -10- ***** of the authority who is to implement the order would attract the territorial jurisdiction of the Court was considered having regard to Section 20(c) of the Code of Civil Procedure as Article 226 of the Constitution thence stood stating : "...The concept of cause of action cannot in our opinion be introduced in Art. 226, for by doing so we shall be doing away with the express provision contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the territories over which the High Court has jurisdiction. It is true that this may result in some inconvenience to person residing far away from New Delhi who are aggrieved by some order of the Government of India as such, and that may be a reason for making a suitable constitutional amendment in Art. 226. But the argument of inconvenience, in our opinion, cannot affect the plain language of Art. 226, nor can the concept of the place of cause of action be introduced into it for that would do away with the two limitations on the powers of the High Court contained in it." In view of clause 2 of Article 226 of the Constitution of India now if a part of cause of action arises outside the jurisdiction of the High Court, it would have jurisdiction to issue a writ. The decision in Khajoor Singh (supra) has, thus, no application. Forum Conveniens CWP No. 13728 of 2010 -11- ***** 25. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. (See Bhagar Singh Bagga v. Dewan Jagbir Sawhany, AIR 1941 Cal; Mandal Jalan v. Madanlal, (1945) 49 CWN 357; Bharat Coking Coal Limited v. M/s Jharia Talkies & Cold Storage Pvt. Ltd. (1997) CWN 122; S.S.Jain & Co. & Anr. v. Union of India & Ors. (1994) CHN 445; M/s. New Horizon Ltd. v. Union of India, AIR 1994 Delhi 126)” The contention of the learned counsel for the petitioner was, that as the order comes into operation, when it is conveyed to the person concerned, therefore, it would be a part of cause of action, though, very small, therefore, this would give jurisdiction to this Court to entertain the writ petition. The reliance thereafter was placed on the judgment of the Hon'ble Supreme Court in the case of Om Prakash Srivastava Vs. Union of India and another (2006) 6 Supreme Court Cases 207 to contend that this Court has power to issue direction, order or writs to enforce 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 CWP No. 13728 of 2010 -12- ***** 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. On the other hand, the learned counsel appearing on behalf of the Union of India, placed reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India and others Vs. Adani Exports Ltd. and another AIR 2002 SC 126, wherein the Hon'ble Supreme Court was pleased to lay down that :- 15. Article 226(2) of the Constitution of India which speaks of the territorial jurisdiction of the High Court reads : "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". 16. It is clear from the above constitutional provision that a High Court can exercise the jurisdiction in relation to the territories within which the cause of action, wholly or in-part, arises. This provision in the Constitution has come up for consideration in a number of cases before this Court. In this regard, it would suffice for us to refer to the observations of this Court in the case of Oil and Natural Gas Commission v. Utpal Kumar CWP No. 13728 of 2010 -13- ***** Basu and Ors. (1994) 4 SCC 711 at 713) wherein it was held :- Under Article 226 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. 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. 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. Thus the question of territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial. 17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute CWP No. 13728 of 2010 -14- ***** a cause so as to empower the court to decide a dispute which has, at least in-part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ispo 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 are such which 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. If we apply this principle then we see that none of the facts pleaded in Paragraph 16 of the petition, in our opinion, fall into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which could confer territorial jurisdiction on the courts at Ahmedabad.” The learned counsel for the petitioner as well as the respondents placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Alchemist Ltd. and Another Vs. State Bank of Sikkim and Others (2007) 11 Supreme Court cases 335, wherein the Hon'ble Supreme Court was pleased to lay down as under :- “ The question involved in the present appeal was whether a part of the cause of action had arisen within the territorial jurisdiction of the High Court at C so as to entertain a writ petition under Article 226 of CWP No. 13728 of 2010 -15- ***** the Constitution filed by the appellant Company against the respondents. The appellant Company was having its registered and corporate office at C. Respondent 2 i.e. State of S was desirous of disinvesting 49% of its equity capital in the bank (Respondent 1) functioning in the said State to a strategic partner with transfer of management in the said bank. For the said purpose, the said State issued an advertisement and invited offers for strategic partnership. Interested parties, firms and companies having management expertise were asked to apply to the first respondent Bank at its head office. The Appellant Company submitted its formal proposal for the strategic business partnership. The Board of Directors of the first respondent Bank shortlisted two entities including the Appellant Company. Negotiations took place between the appellant company and the first respondent Bank. The Chairman and Managing Director of the first respondent Bank visited the place C for further negotiations. The first respondent Bank asked the appellant to deposit a sum of Rs. 4.50 crores with State Bank of India in a fixed deposit to show its bona fides. The appellant deposited the said amount with State Bank of India at C and the photocopies of the receipt were handed over to the executives of the first respondent Bank at C. Through a letter dated 20-2-2004, the CWP No. 13728 of 2010 -16- ***** first respondent Bank informed the appellant Company that its proposal was accepted in principle subject to consideration and approval of the Government of S. On 23-2-2006, the appellant Company received a communication at C by which the first respondent Bank informed the appellant Company that the Government S. had not approved its proposal. The appellant Company, therefore, filed a writ petition before the High Court at C. The High Court dismissed the writ petition only on the ground that it did not have territorial jurisdiction to entertain the writ petition as no cause of action had arisen within the territorial jurisdiction of the Court. Hence, the present appeal. The appellant argued that a part of cause of action had arisen within the territorial jurisdiction of the High Court at C because (i) the appellant Company had its Registered and Corporate Office at C, (ii)The said Company carried on business at C; (iii)