SBCWP NO.4652/92. { 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.4652/1992. Mahesh Chandra Singhania Vs. Gujarat Narmada Valley Fertilizers Co. Ltd. & Anr. Date of Order:- June 29, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Bajrang Lal Sharma, Senior Advocate with Shri Ashok Mishra for the petitioner. Shri A.K. Bhandari, Senior Advocate with Shri Kinshuk Jain for the respondents. ****** Reportable BY THE COURT:- This writ petition has been filed by petitioner Mahesh Chandra Singhania challenging condition No.6 of his appointment order dated 20/8/1981 and the order dated 22/7/1991 by which respondent pursuant to the aforesaid Condition No.6 and Clause 32 of the Service Rules of the Company, terminated his services without making payment of notice pay of three months and relieved him from service on 22/7/1991. SBCWP NO.4652/92. { 2 } 2) Petitioner was appointed as Retainer Sales Executive with the respondent Gujarat Fertilizers Company vide order dated 20/8/1981 and was posted at Jaipur vide order dated 11/9/1981. He joined services of the respondents on 19/9/1981. Appointment of the petitioner was made after due selection on his application in response to advertisement issued by the respondents and after subjecting him to interview. Initially, his appointment was made on probation but on successful completion of period of probation, he was confirmed on 1/8/1992. He was promoted on the post of Marketing Manager in the pay scale of Rs.2200-4025 vide order dated 29/12/1984 in which post also he was confirmed vide order dated 31/12/1985. The post of Marketing Manager was subsequently re-designated as Senior Marketing Manager vide order dated 3/3/1987 in revised pay scale of Rs.2700-4900 w.e.f. 7/10/1986. According to petitioner, he was promoted on the post of Chief Marketing Manager on 16/10/1990 w.e.f. 15/10/1990. Order of termination passed by the respondents by invoking Condition No.6 of the appointment order and Rule 32 of the Service Rules, according to the petitioner, is a punitive order for the reason that he applied for leave of one month from 15/1/1991 to 16/2/1991 vide SBCWP NO.4652/92. { 3 } his application dated 8/1/1991 to avail leave travel concession and visit his elder brother’s family who expired in Sept., 1990. However, the management desired that he should postpone his visit and therefore cancelled the leave. Petitioner again applied from 25/2/1991 to 31/3/1991. Same was sanctioned by the competent authority on 9/2/1991 and then petitioner requested for sanction of ordinary leave upto 30/4/1991 which was also sanctioned. During that period, according to the petitioner, he became ill and therefore, he sent telex message on 30/4/1991 to the General Manager and Executive Director of Marketing of the respondents requesting for sanction of leave on the ground of sickness from 1/5/1991 to 30/6/1991 which too was sanctioned. The company however served upon the petitioner a registered letter dated 13/6/1991 asking for medical certificate for further extension. Petitioner submitted medical certificate along with letter dated 27/6/1991. The management however vide letter dated 13/7/1991 conveyed to the petitioner that medical certificate issued by the Vaidhya was not acceptable. Soon thereafter respondents by invoking aforesaid condition No.6 of the appointment order and Rule 32 of the Rules of service dispensed with services of the petitioner. SBCWP NO.4652/92. { 4 } 3) Shri A.K. Bhandari, learned Senior counsel for the respondents has at the outset raised two preliminary objections; (i) that High Court of Judicature for Rajasthan does not have territorial jurisdiction over the matter in dispute and (ii) that the respondent Gujarat Narmada Valley Fertilizers Co. Ltd. is not a State or instrumentality of the State within the meaning of Article 12 of the Constitution of India. It was argued that the writ petition is not maintainable and is therefore liable to be dismissed without adverting to the merits of the case. Shri A.K. Bhandari, learned Senior counsel argued that at the time of termination of his service, petitioner was posted at Bharuch. Head office of the company is situated at Bharuch in the State of Gujarat. Termination order was issued at Bharuch and it became immediately effective on 22/7/1991 at Bharuch itself. Termination order was dispatched to the petitioner at his Jaipur address from Bharuch. No part of cause of action has arisen at Jaipur or elsewhere in the State of Rajasthan. It was argued that petitioner stood relieved of his duties and relationship of master and servant got snapped the moment termination order was issued. Registrar of the Company is situated in the State of Gujarat. SBCWP NO.4652/92. { 5 } Appointment order was also issued to the petitioner on 20/8/1981 from Bharuch and sent to him at Anand also in the State of Gujarat. He was transferred to the head office of Bharuch vide order dated 23/5/1990 where he joined on 25/7/1990. It was for the reason of his absence from 1/5/1991 to 30/6/1991, that his services were terminated vide order dated 22/7/1991. Learned counsel in support of his argument, placed reliance on the judgments of Supreme Court in CBI, Anti-Corruption Vs. Narayan : 1994(4) SCC 656, Alchemist Limited Vs. State : AIR 2007 SC 1812, Mosaraf Hossain Vs. Bhagheratha & Ors. : 2006(3) SCC 658, State of Rajasthan Vs. Swaika Properties : AIR 1985 SC 1289, Aligarh Muslim University Vs. Vinay Engineering : (1994) 4 SCC 710 and Oil and Natural Gas Commission Vs. Utpal : (1994) 4 SCC 711. 4) Shri A.K. Bhandari, learned Senior counsel submitted that Condition No.15 of the appointment order (Ann.3) also clearly stated that “in case of any dispute arising out of this offer, or pertaining to your appointment, the place of jurisdiction will be Bharuch only.” Offer of appointment, which included the aforesaid condition, was unconditionally accepted by the petitioner and therefore he is bound by the SBCWP NO.4652/92. { 6 } aforesaid condition. Learned counsel in support of this argument, relied on the judgment of Supreme Court in A.B.C. Vs. A.P. Agencies : AIR 1989 SC 1239, Globe Transport Vs. Triveni Engineering : (1983) 4 SCC 707 and Hakam Singh Vs. M/s.Gammon (India) Ltd. : AIR 1971 SC 740. It is therefore submitted that the writ petition be dismissed. 5) Per contra, Shri Bajrang Lal Sharma, learned Senior Counsel assisted by Shri Ashok Mishra, learned counsel appearing for the petitioner, has argued that since the order of termination has been served and communicated to the petitioner at Jaipur, therefore this Court would have territorial jurisdiction under Article 226 of the Constitution of India. It is contended that termination takes effect from the date on which the order of termination is actually communicated and cause of action arises at the place where order of termination is communicated. It is settled law that cause of action is deemed to have accrued in the territory where the employee suffers its consequences and where his rights are infringed. Learned counsel in support of his arguments placed reliance on the judgments of Supreme Court in State of Punjab Vs. Amar Singh Harika : AIR 1966 SC 1313, Secretary, Govt. of Maharashtra Vs. SBCWP NO.4652/92. { 7 } Bansidhar : (1981) LAB.I.C. 833 (Allahabad), Division Bench of Calcutta High Court in Umasankar Chatterjee Vs. Union of India and others : 1982 LAB.I.C. 1361, Division Bench of Bombay High Court in S.V. Puranik Vs. Indian Airlines and others : 1991 LAB.I.C. 696, Division Bench of Kerala High Court in Union of India and others Vs. P.Kunhabdulla : 1985 (1) All India Service Law Journal (Kerala) 471, Division Bench judgment of this Court in Mohan Singh Vs. Union of India & Anr. : WLC (Raj.) 2001(4) 41, judgment of Supreme Court in Rajasthan High Court Advocates Association Vs. Union of India : (2001) 2 SCC 294, another judgment of Supreme Court in Kusum Ingots & Alloys Ltd. Vs. Union of India : (2004) 6 SCC 254. It is therefore prayed that preliminary objections raised by the respondents be over ruled and the matter be decided on merits. 6) Shri Bajrang Lal Sharma, learned senior counsel appearing for the petitioner has heavily relied on the Constitution Bench judgment of Supreme Court in Amar Singh Harika supra. Their Lordships of Supreme Court in para 11 of the above judgment, observed as under:- “(11) The first question which has been raised before us by Mr. Bishan Narain is that though the respondent came to know SBCWP NO.4652/92. { 8 } about the order of his dismissal for the first time on the 28th May 1951, the said order may be deemed to have taken effect as from the 3rd June 1949 when it was actually passed. The High Court has rejected this contention; but Mr.Bishan Narain contends that the view taken by the High Court is erroneous in law. We are not impressed by Mr. Bishan Narain's argument. It is plain that the mere passing of an order of dismissal would not be effective unles it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may feel that the ends of justice would be met by demoting the officeer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effecvt unle4ss the officer concerned knows about the said order and it is otherwise cumm9nicatd to all the parties concerned. If it is held that the mere passing of the order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise. If before receiving the order of dismissal, the officer has exercised his power and jurisdiction to take decisions orr do acts within his authority and power, would those acts and decisions be rendered invalid after it is known that an order of dismissal had already been passed against him? Would the officer concerned be entitled to his salary for the period between the date when the order was passed and the date when it was communicated to him? These and other complications would inevitably arise if it is held that the order of dismissal takes effect as soon as it is passed, though it jmay be communicated to the officer concerned several days thereafter. It is true that in the present case, the respondent had SBCWP NO.4652/92. { 9 } been suspended during the material period; but that does not change the position that if the officer concerned is not suspended during the period of enquiry, complications of the kind already indicated would definitely arise. We are, therefore, reluctant to hold that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concened or otherwise publishing it will take effect as from the date on which the order is actually written out by the said authority; such an order can onl be effective after it is communicated to the officer concerned or is otherwise published. When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working and holding charge of his office, can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority. In our opinion, ther4fore, the High Curt was plainly right in holding that the order of dismissal passed against the respondent on the 3rd June 1949 could not be said tohave taken effect until the respondent came to know about it on the 28th May 1951.” 7) This line of reasoning has been adopted by the subsequent Division Bench judgments of Allahabad High Court in Bansidhar supra, Calcutta High Court in Umasankar Chatterjee supra, Bombay High Court in S.V. Puranik, Kerala High Court in P.Kunhabdulla supra and this Court in Mohan Singh supra. But there are certain subsequent judgments of Supreme Court cited by the learned counsel for SBCWP NO.4652/92. { 10 } the respondents which appear to have taken a view to the contrary. In Narayan Diwakar supra, Two Judge Bench of Supreme Court while dealing with the question of territorial jurisdiction where original writ petitioner, filed writ petition before that High Court on the premise that while he was posted in Arunachal Pradesh, he received a massage through Chief Secretary of the State to meet CBI Inspector at Bombay in connection with investigation of a corruption case. On receiving such message, he filed writ petition for quashing the action of the CBI. On that basis, it was held by the Guwahati High Court that it had territorial jurisdiction to entertain the writ petition. The Supreme Court held that ‘the Guwahati High Court was clearly in error in deciding the question of jurisdiction in favour of the respondent.” The aforesaid observation was made by the Supreme Court despite original writ petitioner himself expressing no objection for the judgment of Guwahati High Court being set-aside and leaving it open to him to approach the court of competent jurisdiction. 8) Another Two Judge Bench of Supreme Court in Alchemist Limited supra confined judgment of Punjab & Haryana High Court which upheld the preliminary objections raised by the respondents SBCWP NO.4652/92. { 11 } and dismissed the writ petition on the ground of want of territorial jurisdiction. The Supreme Court held that prior to Constitutional (Forty-second Amendment) Act, 1976, concept of cause of action was totally irrelevant and alien for conferring jurisdiction on the High Courts. In that case, offers were invited by the Government of Sikkim for disinvesting its equity share capital in the State Bank of Sikkim. Negotiations took place between the parties at Chandigarh. Initially, letter of acceptance and subsequently letter of rejection, were both received by the original writ petitioner at Chandigarh. The writ petition was filed by the appellant-company before the Punjab & Haryana High Court challenging the decision on the premise that the appellant-company had its registered office at Chandigarh and negotiations took place at Chandigarh and also rejection thereof was communicated at Chandigarh. It was held by the Supreme Court that all these factors were not essential, integral or material facts so as to constitute a part of ‘cause of action’ within the meaning of Article 226(2) of the Constitution of India. 9) In Mosaraf Hossain Khan supra, Two-Judge Bench of Supreme Court approvingly noticed Full SBCWP NO.4652/92. { 12 } Bench decision of Kerala High Court in Nakul Deo Singh Vs. Dy.Commandant : (1999) 3 KLT 629 (FB), in which it was held as under:- “23.XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX The fact that a person who was dismissed from service while he was in service outside the State would have no suffer the consequence of that dismissal when he is in his native place by being rendered jobless, is not a fact which constitutes the bundle of facts giving rise to a cause of action in his favour to challenge his dismissal. That right accrued to him earlier when he was dismissed from service outside the State and he loss his employment.” XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX “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 meet a plea of latches 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 Article 226 of the Constitution. When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant and not in his native place to which he might have retired on his dismissal.” 10) On facts however, Mosaraf Hossain Khan, supra, was an altogether different matter wherein an order of Magistrate taking cognizance under SBCWP NO.4652/92. { 13 } Section 190 Cr.P.C. for offence under Section 138 of the Negotiable Instruments Act passed by the Chief Judicial Magistrate at Birbhum in the State of West Bengal was challenged by way of filing writ petition by the respondents before the Kerala High Court, who received summons at the registered office of the company at Ernakulam. The Supreme Court held that Kerala High Court had no jurisdiction to entertain the petition under Article 227 of the Constitution of India. 11) In Eastern Coalfields Ltd. supra, challenge to termination of service was made by an employee of the said company. Company had its head office at West Bengal. Services of the employee were terminated at a place in the State of Jharkhand whose office was also located at the same place. Termination order was not subjected to sanction of the head office. In those circumstances, it was held that no part of cause of action having arisen within the State of West Bengal and that entire cause of action having arisen outside the State of West Bengal, mere location of head office of the company in West Bengal, would not confer jurisdiction upon the Calcutta High Court to entertain such a writ petition. In M/s.Swaika Properties supra, writ SBCWP NO.4652/92. { 14 } petition was filed before the Calcutta High Court on receiving notice of acquisition of land situated in the State of Rajasthan. It was held that mere service of notice at Calcutta, would not give rise to a cause of action within the territory of Calcutta High Court unless service of such summon is the integral part of cause of action. In Aligarh Muslim University supra, Three- Judge Bench of Supreme Court was dealing with a case wherein respondent-contractor entered into an agreement with the appellant for construction work to be carried out at Aligarh in Uttar Pradesh. Contract provided that in case of any dispute, Aligarh Court alone will have jurisdiction. Arbitrator appointed at Aligarh was to function thereat. Respondents initiated proceedings in Calcutta High Court merely because it was a Calcutta based firm. In those facts, the Supreme Court held that no part of the cause of action arose within the territorial jurisdiction of Calcutta High Court, therefore, exercise of jurisdiction by it amounted to abuse of jurisdiction. With this observation, appeal was allowed. In Oil and Natural Gas Commission supra also, it was held that mere fact that petitioner company had its registered office at Calcutta and SBCWP NO.4652/92. { 15 } that the advertisement was published in the newspaper by the ONGC at Calcutta inviting applications from Delhi for the work to be performed at Gujarat and that in response thereto it sent tenders to Delhi from Calcutta and which offers were rejected on the ground of eligibility because of its failure to fulfill the criteria, would not constitute integral part of cause of action. 12) Both the learned counsel made their submissions at length and canvassed arguments apart from preliminary objections also on merits of the case. If however writ petition is held to be not maintainable for the reason of lack of jurisdiction with this Court, there would be no necessity for deciding the other preliminary objection raised with reference to Article 12 of the Constitution and the main petition on its merits. 13) It may be significant to notice here that none of the aforesaid judgments cited by the learned counsel for the respondents, which are either of Two-Judge Bench strength or Three-Judge Bench strength, the Constitution Bench of Supreme Court in Amar Singh Harika supra was noticed, discussed or distinguished. But that would not make any difference because the context in which the SBCWP NO.4652/92. { 16 } dispute arose before the Supreme Court in Amar Singh Harika supra was somewhat different wherein it was held that order of dismissal is not effective unless it is published and communicated to the officer concerned. Order of dismissal passed by the appropriate authority and kept on its file without communicating it to the officer, without publishing it, does not take effect from the date on which order is actually rendered by the said authority. Such an order can be made effective only after its communication to the officer concerned or otherwise published. The decision of Supreme Court in Amar Singh Harika supra was not rendered in the context of cause of action on the basis of interpretation of Section 20(c) of the C.P.C. Incidentally, it may also be important to notice that the cause of action or integral part thereof within the territory of the High Court concerned was made an additional ground to confer jurisdiction upon it under Article 226 of the Constitution by virtue of 42nd Constitutional Amendment Act of 1976, underling object of the Act of 1976 as stated in the statement or objects and reasons thereof reads as under:- SBCWP NO.4652/92. { 17 } “Under the existing Article 226 of the Constitution, the only High Court which has jurisdiction with respect in 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”. (emphasis supplied) 14) Supreme Court in Kusum Ingots & Alloys Ltd. supra while considering similarity between provisions of Section 20(c) of CPC and clause (2) of Article 226 of the Constitution held that two provisions being in para-materia, earlier decisions of the Supreme Court on 20(c) of CPC shall apply to the writ proceedings also and held that even if a small fraction of cause of action accrues within the jurisdiction of the High Court, the High Court will have jurisdiction in the matter. However, 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. Their Lordships in para 6 of the report, held as under:- SBCWP NO.4652/92. { 18 } “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. 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 importance 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.” 15) In all the Division Bench judgments relied up on by the learned counsel for the petitioner, Allahabad High Court, Kerala High Court, Bombay High Court and Calcutta High Court, have followed the principle of law annunciated by the Supreme Court in Amar Singh Harika supra and decisions in those writ petitions filed before the respective High Courts were mainly rendered on the analogy of order of dismissal becoming effective from the date of its service. But the Division Bench