Case: CALCUTTA GUJARATI EDUCATION SOCIETY AND ANOTHER Vs. REGIONAL PROVIDENT FUND COMMISSIONER AND ORS

A.S. Bopanna, J. 1. The appellants are before this Court assailing the order dated 19.06.2008 passed by the High Court of Calcutta in CO. No.208 of 2006 whereby the High Court has rejected the writ petition filed by the appellants herein on the ground that it does not have the territorial jurisdiction to entertain the writ petition. Hence, the issue for consideration herein is as to whether the appellants could have maintained the writ petition filed under Article 227 of the Constitution of India before the Calcutta High Court. The facts leading to such situation is that the appellants-herein claiming to be aggrieved by the order dated 20.10.2005 passed by the Employees Provident Fund Appellate Tribunal had approached the Calcutta High Court assailing the same. Since the order was passed by the Appellate Tribunal situated at New Delhi, the Calcutta High Court has declined to entertain the writ petition on holding that it has no jurisdiction as the situs of the Tribunal is at New Delhi which is outside its territorial jurisdiction. The appellants claiming to be aggrieved are before this Court in this appeal. 2. We have heard learned senior counsel appearing on behalf of the appellants as well as learned counsel appearing on behalf of the respondents and also perused the relevant papers. 3. It is noted that the issue which had arisen for consideration in the original proceedings was with regard to the remittance of the provident fund contribution relating to the component of Government dearness allowance in respect of the employees of appellants-herein. In that circumstance, the order passed by the Competent Authority, namely, the Assistant Provident Fund Commissioner, Calcutta was against the appellants herein and it is in that circumstance the appellants had filed the appeal before the Appellate Tribunal as contemplated under Section 7-I of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The Appellate Authority has decided the matter against the appellants. Insofar as the issue raised on merits relating to the payment of contribution, the same does not arise for consideration before us at this juncture since a consideration with regard to the correctness or otherwise of the order dated 20.10.2005 passed by the Appellate Tribunal would have to be considered at the outset by the Competent High Court in the writ petition on the contentions which have been raised on merits relating to the order. The only issue for our consideration herein is as to whether the writ petition filed by the appellants assailing such order would be maintainable before the Calcutta High Court wherein the appellants had assailed the said order. 4. Insofar as that aspect of the matter as already noted in the instant case, the original authority, namely, the Assistant Provident Fund Commissioner, Calcutta situated in West Bengal and the order dated 20.10.2005 was passed by the authority under the provisions of the Employees Provident Fund Act at Calcutta. The appeal provided under Section 7-I of that Act would, however, lie to the Tribunal situate at new Delhi. If that be the position, the original authority is situate, within the jurisdiction of the Calcutta High Court. On the aspect relating to the jurisdiction to entertain the writ petition at the place where the original authority is situate, the issue is no more res integra inasmuch as this Court while considering the matter in the case of Ambica Industries vs. Commissioner of Central Excise (2006) 6 SCC 769 has addressed such issue. In that case, the consideration in the appeal was with regard to the determination of the sit us of the High Court in which the appeal would lie under Section 35-G of the Central Excise Act,1944. The issue therein was with regard to the maintainability or otherwise of the writ petition before the High Court at New Delhi merely because the Central Excise and Service Tax Appellate Tribunal (CESTAT) is situated at New Delhi. While considering the said question, this Court has arrived at the conclusion that when such Tribunals exercise its jurisdiction in respect of the issues arising from the different parts of the country, the territorial jurisdiction for filing the writ petition at the place where the Tribunal is situated would not be justified. It has been held therein that the writ petition would be maintainable at the place where the original authority/court had exercised the jurisdiction. The relevant paragraph No.13 and 17 read as follows: 13. The Tribunal, as noticed hereinbefore, exercises jurisdiction over all the three States. In all the three States there are High Courts. In the event, the aggrieved person is treated to be the dominus litis, as a result whereof, he elects to file the appeal before one or the other High Court, the decision of the High Court shall be binding only on the authorities which are within its jurisdiction. It will only be of persuasive value on the authorities functioning under a different jurisdiction. If the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Courts or courts or tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play. An assessee, affected by an order of assessment made at Bombay, may invoke the jurisdiction of the Allahabad High court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the High Court at Bombay. 17. There cannot be any doubt whatsoever that in terms of Article 227 of the Constitution of India as also Clause (2) of Article 226 thereof, the High Court would exercise its discretionary jurisdiction as also power to issue writ of certiorari in respect of the orders passed by the subordinate courts within its territorial jurisdiction or if any cause of action has arisen there within but the same tests cannot be applied when the appellate court exercises a jurisdiction over a tribunal situated in more than one State. In such a situation, in our opinion, the High Court situated in the State where the first court is located should be considered to be appropriate Appellate Authority. The Code of Civil Procedure did not contemplate such a situation. It provides for jurisdiction of each court. Even a District Judge must exercise its jurisdiction only within the territorial limits of a State. It is inconceivable under the code of Civil Procedure that the jurisdiction of the District Court would be exercisable beyond the territorial jurisdiction of the district, save and except in such matters where the law specifically provides there for.(emphasis supplied) 5. The learned counsel for the respondents no doubt referred to the decision in the case of Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr. (2004) 6 SCC 254 wherein it is held that the territorial jurisdiction will be at the place where part of the cause of action arises. Apart from the fact that Calcutta has the territorial jurisdiction since the cause of action has arisen there, it is seen that this Court while considering this aspect in the case of Ambica Industries (supra) has referred to the decision in Kusum Ingots (supra) and declared the position of law. Hence no further discussion is required on that aspect. 6. If the said enunciation of law is kept in view, as already taken note, in the instant case the original order passed is by the Assistant Provident Fund Commissioner situate at Calcutta, West Bengal and the Calcutta High Court can exercise territorial jurisdiction. In that light we are of the view that the Calcutta High Court was not justified in its decision to decline to entertain the writ petition.

Decision reasoning: 1[ds]4. Insofar as that aspect of the matter as already noted in the instant case, the original authority, namely, the Assistant Provident Fund Commissioner, Calcutta situated in West Bengal and the order dated 20.10.2005 was passed by the authority under the provisions of the Employees Provident Fund Act at Calcutta. The appeal provided under Section 7-I of that Act would, however, lie to the Tribunal situate at new Delhi. If that be the position, the original authority is situate, within the jurisdiction of the Calcutta High Court. On the aspect relating to the jurisdiction to entertain the writ petition at the place where the original authority is situate, the issue is no more res integra inasmuch as this Court while considering the matter in the case of Ambica Industries vs. Commissioner of Central Excise (2006) 6 SCC 769   has addressed such issue. In that case, the consideration in the appeal was with regard to the determination of the sit us of the High Court in which the appeal would lie under Section 35-G of the Central Excise Act,1944. The issue therein was with regard to the maintainability or otherwise of the writ petition before the High Court at New Delhi merely because the Central Excise and Service Tax Appellate Tribunal (CESTAT) is situated at New Delhi. While considering the said question, this Court has arrived at the conclusion that when such Tribunals exercise its jurisdiction in respect of the issues arising from the different parts of the country, the territorial jurisdiction for filing the writ petition at the place where the Tribunal is situated would not be justified. It has been held therein that the writ petition would be maintainable at the place where the original authority/court had exercised the jurisdiction. The relevant paragraph No.13 and 17 read as follows:13. The Tribunal, as noticed hereinbefore, exercises jurisdiction over all the three States. In all the three States there are High Courts. In the event, the aggrieved person is treated to be the dominus litis, as a result whereof, he elects to file the appeal before one or the other High Court, the decision of the High Court shall be binding only on the authorities which are within its jurisdiction. It will only be of persuasive value on the authorities functioning under a different jurisdiction. If the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Courts or courts or tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play. An assessee, affected by an order of assessment made at Bombay, may invoke the jurisdiction of the Allahabad High court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the High Court at Bombay.17. There cannot be any doubt whatsoever that in terms of Article 227 of the Constitution of India as also Clause (2) of Article 226 thereof, the High Court would exercise its discretionary jurisdiction as also power to issue writ of certiorari in respect of the orders passed by the subordinate courts within its territorial jurisdiction or if any cause of action has arisen there within but the same tests cannot be applied when the appellate court exercises a jurisdiction over a tribunal situated in more than one State. In such a situation, in our opinion, the High Court situated in the State where the first court is located should be considered to be appropriate Appellate Authority. The Code of Civil Procedure did not contemplate such a situation. It provides for jurisdiction of each court. Even a District Judge must exercise its jurisdiction only within the territorial limits of a State. It is inconceivable under the code of Civil Procedure that the jurisdiction of the District Court would be exercisable beyond the territorial jurisdiction of the district, save and except in such matters where the law specifically provides there for.(emphasis supplied)5. The learned counsel for the respondents no doubt referred to the decision in the case of Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr. (2004) 6 SCC 254 wherein it is held that the territorial jurisdiction will be at the place where part of the cause of action arises. Apart from the fact that Calcutta has the territorial jurisdiction since the cause of action has arisen there, it is seen that this Court while considering this aspect in the case of Ambica Industries (supra) has referred to the decision in Kusum Ingots (supra) and declared the position of law. Hence no further discussion is required on that aspect.6. If the said enunciation of law is kept in view, as already taken note, in the instant case the original order passed is by the Assistant Provident Fund Commissioner situate at Calcutta, West Bengal and the Calcutta High Court can exercise territorial jurisdiction. In that light we are of the view that the Calcutta High Court was not justified in its decision to decline to entertain the writ petition.