Case: SHANTI DEVI ALIAS SHANTI MISHRA Vs. UNION OF INDIA &amp; ORS

3. Brief facts of the case for deciding this appeal are:3.1 The husband of the appellant Shri Bashishtha Narayan Mishra was employed in Coal India Limited. He was working at Moira Colliery, Bankola Area, District Burdwan, West Bengal. Ministry of Coal, Government of India in exercise of power under Section 3E of Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 and in supersession of the Coal Mines Family Pension Scheme, 1971 notified a Family Coal Mines Pension Scheme, 1998 dated 05.03.1998. Late husband of the appellant did not opt for the pension Scheme notified under Notification dated 05.03.1998.3.2 By Notification dated 09.01.2002 Coal Mines Pension Scheme, 1998 was amended by inserting paragraph 2A in the Scheme providing that an employee, who had not opted for the Coal Mines Family Pension Scheme, 1971 but is covered by the Provident Fund Scheme may opt for pension within a period of nine months. After the Notification dated 09.01.2002, the same was circulated by Eastern Coal Fields Limited to all Regional Commissioners/ Assistant Commissioners.3.3 The husband of the appellant in pursuance of the Notification dated 09.01.2002 submitted the option opting for Pension Scheme, which option was forwarded to the Sr. Personnel Officers by Manager, Moira Colliery by letter dated 18.11.2003 requesting for transfer of Rs.1, 38,164/- from provident fund account of B.N. Mishra to his pension fund. By further letter dated 20.11.2003 of Regional Commissioner, it was informed that amount of Rs.48,467/- has been adjusted under para 4(2) of Scheme, 1998. Late B.N. Mishra was to retire on 30.04.2005. His papers for settlement of pension were forwarded to The Regional Commissioner-1, Coal Mines Provident Fund, Asansol. By letter dated 30.11.2005 written by Regional Commissioner, Coal Mines Provident Fund, Region-1, Asansol, the late husband of the appellant was asked to deposit the amount of Rs.39,198/- towards recovery of pension contribution. The pension was sanctioned to Shri Mishra after about 14 months from retirement, thereafter, he started receiving pension w.e.f. May, 2005.3.4 Late Shri B.N. Mishra being native of Village Bhuskol, Police Station, Darbhanga, District Darbhanga, he had claimed payment for pension from Darbhanga, State of Bihar. Pension started in account of Late Shri B.N. Mishra with State Bank of India, Darbhanga, State of Bihar. A Writ Petition No. 13955 of 2006 was filed by late Shri B.N. Mishra in Patna High court where he prayed for grant of refund of Rs.1,33,559/-, which was wrongly withheld/ illegally deducted from the writ petitioner. The said writ petition was dismissed on 08.02.2013 on the ground of lack of territorial jurisdiction. Learned Single Judge held that petitioner served in the State of West Bengal under the authorities and organizations which are located either in States of West Bengal or Jharkhand, hence, High Court of Patna had no territorial jurisdiction.3.5 After dismissal of the above Writ Petition No. 13955 of 2006 on 08.02.2013, late Shri B.N. Mishra filed Writ Petition No. 4930 of 2013 in Jharkhand High Court for the relief which he had claimed in the Writ Petition No.13955 of 2006 before Patna High Court. When notice of the writ petition filed by late Shri B.N. Mishra in Jharkhand High Court was received by office of Regional Provident Fund Commissioner, Asansol, a letter dated 07.10.2013 was issued to the husband of the appellant at his place of residence, i.e., Village Bhuskol, Police Station Darbhanga, District Darbhanga, State of Bihar stating that Shri B.N. Mishra having not opted initially for pension scheme in pursuance of 1998 notification, he could not have opted for pension in the year 2002. It was stated that Pension of Shri B.N. Mishra was erroneously settled by Regional Commissioner, hence, Rs.8,01,334/- is to be recovered towards pension payment from May, 2005 to September, 2013.3.6 By further letter dated 06.11.2013 issued by Regional Commissioner, Coal Mines Provident Fund, Region-1, Asansol, he was directed to refund amount of Rs.8,09,268/- and entire pension contribution alongwith interest. He was communicated that it has been decided to stop payment of monthly pension w.e.f. November, 2013. After receipt of the letter dated 07.10.2013, Shri B.N. Mishra sent a reply on 07.11.2013 stating that letter dated 07.10.2013 has been issued due to personal bias arising due to punitive action taken by appropriate authorities against Regional Commissioner, Region-1, Asansol on a petition filed by Shri B.N. Mishra under the Right to Information Act, 2005. Petitioner sent representations to Secretary, Ministry of Coal and Commission.3.7 A Writ Petition No. 5999 of 2014 was filed by late Shri B.N. Mishra in Patna High Court where he challenged the letter dated 07.10.2013 and 06.11.2013 and also sought direction for payment of pension to the petitioner with interest. The writ petition came for hearing before learned Single Judge on 04.08.2017. Learned Single Judge noticed the earlier order of the High Court dated 08.02.2013 by which his earlier Writ Petition No.13955 of 2006 was dismissed on the ground of lack of territorial jurisdiction. Learned Single Judge observed that on similar facts, the said writ petition having been dismissed on 08.02.2013 on the ground of lack of territorial jurisdiction and writ petition having been filed by petitioner before the Jharkhand High Court, which is pending, the order of stoppage of pension is part of retirement benefit, hence, the writ petition is dismissed on the ground of lack of territorial jurisdiction. A LPA No.1265 of2017 was filed against the judgment of learned Single Judge dated 04.08.2017. During the pendency of writ petition, Shri B.N. Mishra died and his wife Shanti Devi was substituted as writ petitioner. LPA was filed before the Division Bench against the judgment of learned Single Judge, which has been dismissed by the impugned judgment, aggrieved by which order, this appeal has been filed.

Reasoning:
There is no dispute between the parties that the pension of late Shri B.N. Mishra was stopped from November, 2013 and the Writ Petition No.5999 of 2014 was filed after stoppage of pension, which he was getting for the last 08 years. Further by letter dated 06.11.2013, petitioner was also directed to return the amount of Rs.8,09,268/-, which was amount of pension he received in his bank account in State Bank of India, Darbhanga from May, 2005.13. We may first notice the order of learned Single Judge dismissing the writ petition on the ground of lack of territorial jurisdiction dated 04.08.2017. Paragraph 5 of the judgment gives reasons for dismissing the writ petition. In paragraph 5, mainly two reasons have been given by the learned Single Judge for dismissing the writ petition; (i) Earlier Writ Petition No.13955 of 2006 for grant of retiral benefits was dismissed on 08.02.2013 on the ground of lack of territorial jurisdiction. The petitioner did not move in LPA or before the Supreme Court; and (ii) When the petition of payment of retiral benefits is pending before the Jharkhand High Court, the petitioner should have filed the writ petition before the same High court against the order of stoppage of pension as the payment of pension is also a part of retiral benefits.15. The learned Single Judge did not correctly consider the facts and pleadings in Writ Petition No. 13955 of 2006 and Writ Petition No. 5999 of 2014. The earlier writ petition filed by the petitioner in the year 2006 was where petitioner had prayed for refund of wrongly withheld/illegally detained amount of Rs.1,33,559/-. When the earlier writ petition was filed, there was no issue of non-payment of pension or stoppage of pension since the pension had been started w.e.f. May, 2005. The subsequent Writ Petition No. 5999 of 2014 was filed when payment of pension after 08 years was stopped and the petitioner was directed to return the amount of Rs.8,09,268/-. The cause of action for filing Writ Petition No.5999 of 2014 was entirely different. The learned Single Judge committed error in holding that in view of dismissal of the earlier writ petition on the ground of lack of territorial jurisdiction, the Writ Petition is also dismissed.16. The second reason given by learned Single Judge that petitioner ought to have filed the writ petition before the Jharkhand High Court also does not commend us. For a retiree, who is settled in Darbhanga and receiving pension at District Darbhhanga, it cannot be said that it was necessary for him to file his petition in the Jharkhand High Court where his earlier writ petition was pending. The subject matter of the earlier writ petition was entirely different and the dismissal of the writ petition does not preclude the petitioner to file subsequent writ petition in the same High Court.17. The Division Bench of the High Court did not advert to the facts or pleadings of the writ petition and only after quoting paragraphs 4 and 5 of the judgment of the learned Single Judge dismissed the writ petition without adverting to any issue, which was raised in the LPA by the writ petitioner. Copy of the grounds of LPA No. 1265 of 2017 has been filed as Annexure P-24, which indicate that petitioner has clearly pleaded the relevant facts and specifically stated that cause of action arisen in the year 2013 cannot be subject matter of writ petition filed 08years ago in the year 2006. The main pleadings in the writ petition were not dealt with by the High Court and the High Court having dismissed the writ petition on the ground of lack of territorial jurisdiction,we need to advert as to whether there was any cause of action for entertaining the writ petition by Patna High Court.21. This Court had occasion to consider the cause of action in context of Article 266 of the Constitution and has explained the expression cause of action in large number of cases. We may refer to a Three Judge Bench judgment of this Court in Oil and Natural Gas Commission vs. Utpal Kumar Basu and Ors., (1994) 4 SCC 711     where in paragraphs 5 and 6 following has been laid down:-5. Clause (1) of Article 226 begins with a non obstante clause - notwithstanding anything in Article 32 - and provides that 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, for the enforcement of any of the rights conferred by Part III or for any other purpose. Under clause (2) of Article 226 the High Court may exercise its power conferred by clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that 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. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. That is at best its case in the writ petition.6. 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 by the Court. In Chand Kour vs. Partab Singh [ILR (1889) 16 Cal 98, 102 : 15 IA 156] Lord Watson said:... the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.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. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition.Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court.25. Another judgment which needs to be noticed is Kusum Ingots & Alloys Ltd. vs. Union of India and Anr., (2004) 6 SCC 254 wherein this Court reiterated the meaning of cause of action in paragraph 6. This Court reiterated that even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. In paragraph 18, following was held:-18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.27. Learned counsel for the appellant has also placed reliance on a Division Bench judgment of Patna High court in Saryu Singh vs. The Union of India and Ors., 2015(2) PLJR 256.The above was a case where the petitioner had claimed the due pensionary benefits whose grievance was that payment made to him was less payment. In the above context, the Division Bench in paragraphs 63, 64 and 66 laid down following:-63. Recently pointed out the Supreme Court, in Nawal Kishore Sharma vs. Union of India, reported in (2014) 9 SCC 329  , that the question, whether or not cause of action, wholly or in part, has arisen within the territorial limit of any High Court, shall have to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution of India. 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 Courts jurisdiction.64. In the backdrop of the position of law, as discussed above, it needs to be noted that the writ petitioner was, admittedly, an employee of Coal India Limited and as per the terms and conditions of his employment, the writ petitioner, as an employee, is, admittedly, required to be paid his pension and pensionery benefits by his employer at Patna.66. If, therefore, the writ petitioner is not paid the sum of money, which is due and payable to him as pension and pensionery benefits, at Patna, it becomes obvious that his right to receive due and payable pension and pensionery benefits, at Patna, is being denied; consequently the infringement of his right or his sufferance of injury is at Patna.28. The above judgment of the same High Court was relevant in the facts of the present case, which judgment although was delivered prior in time, but was not noticed by the learned Single Judge as well as the Division Bench.29. Form the facts of the present case, we are of the considered opinion that part of cause of action has arisen within the territorial jurisdiction of Patna High Court. The deceased petitioner was continuously receiving pension for the last 08 years in his saving bank account in State Bank of India, Darbhanga. The stoppage of pension of late B.N. Mishra affected him at his native place, he being deprived of the benefit of pension which he was receiving from his employer. The employer requires a retiring employee to indicate the place where he shall receive pension after his retirement. Late Shri B.N. Mishra had opted for receiving his pension in State Bank of India, Darbhanga, State of Bihar, which was his native place, from where he was drawing his pension regularly for the last 08 years, stoppage of pension gave a cause of action, which arose at the place where the petitioner was continuously receiving the pension. We, thus, are of the view that the view of the learned Single Judge as well as the Division Bench holding the writ petition not maintainable on the ground of lack of territorial jurisdiction was completely erroneous and has caused immense hardship to the petitioner32. This Court in Kusum Ingots & Alloys Ltd. (supra) has also referred to principle of forum conveniens. Following was stated in paragraph 30:-30. 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 Bhagat Singh Bugga vs. Dewan Jagbir Sawhney [AIR 1941 Cal 670  ], Madanlal Jalan vs. Madanlal [AIR 1949 Cal 495  ], Bharat Coking Coal Ltd. vs. Jharia Talkies & Cold Storage (P) Ltd. [1997 CWN 122], S.S. Jain & Co. vs. Union of India [(1994) 1 CHN 445] and New Horizons Ltd. vs. Union of India [AIR 1994 Del 126  ].33. As noted above, the learned single Judge has also observed that petitioner ought to have filed the writ petition in Jharkhand High Court where his earlier writ petition was pending. The earlier writ petition which was initially filed in 2006 in Patna High Court was for refund of the amount as noted above. After dismissal of the writ petition by Patna High Court on the ground of lack of territorial jurisdiction, Shri B.N. Mishra had filed a Writ Petition No.4930 of 2013 in Jharkhand High Court for the relief which was claimed in Writ Petition No.13955 of 2006. As noted above, the cause of action for filing the Writ Petition No. 5999 of 2014 was entirely different. Stoppage of pension and asking for refund of more than Rs. 08 lakhs amount had serious adverse effect on the petitioner, who was staying at his native place Darbhanga. A retired employee, who is receiving pension, cannot be asked to go to another court to file the writ petition, when he has a cause of action for filing a writ petition in Patna High Court. For a retired employee convenience is to prosecute his case at the place where he belonged to and was getting pension. The submission of the learned counsel for the respondent Nos.1 to 3 on principle of forum non conveniens has no substance.