SHANTI DEVI ALIAS SHANTI MISHRA versus UNION OF INDIA & ORS.
[2020] 12 S.C.R. 279, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Body
A
B
C
D
E
F
G
H
279
SHANTI DEVI ALIAS SHANTI MISHRA
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 3630 of 2020)
NOVEMBER 05, 2020
 [ASHOK BHUSHAN, R. SUBHASH REDDY AND
M.R. SHAH, JJ.]
Constitution of India – Art. 226 – Code of Civil Procedure –
s. 20 – Coal Mines Provident Fund and Miscellaneous Provisions
Act, 1948 – Family Coal Mines  Pension Scheme, 1998 – Territorial
jurisdiction – The Government notified a Family Coal Mines Pension
Scheme, 1998 dated 05.03.1998 – Earlier, the late husband of the
appellant did not opt for the said pension scheme – However, later
the husband of appellant opted for the pension scheme by notification
dated 09.01.2002 – The late husband of the appellant claimed
payment for pension from Darbhanga, State of Bihar – A writ petition
was filed by the husband of the appellant in Patna High Court
where prayed for grant of refund of Rs.1,33,559/- which was
wrongly withheld/ illegally deducted from him – The said writ petition
was dismissed on 08.02.2013 on the ground of lack of territorial
jurisdiction – After dismissal of the said writ petition, the husband
of appellant filed writ petition in Jharkhand High Court for the
same relief – Thereafter, letters dated 07.10.2013 and 06.11.2013
were issued from the office of Regional Provident Fund
Commissioner to the husband of the appellant – The letter stated
that since husband of appellant initially had not opted for pension
scheme in pursuance of 1998 notification, he could not have opted
for pension in
the year 2002 – It was further stated that pension
was erroneously settled by Regional Commissioner, hence, more than
Rs.08 lakhs was to be recovered from the husband of the appellant
– It was also communicated through same letters that it was decided
to stop payment of monthly pension w.e.f. November, 2013 –
Husband of appellant filed another writ petition in Patna High Court
where he challenged the letters dated 07.10.2013 and 06.11.2013
– The Single Judge of the High Court after noticing the earlier
order of the High Court dated 08.02.2013 and observing that after
dismissal of writ petition, the petitioner had filed another writ
[2020] 12 S.C.R. 279
279
A
B
C
D
E
F
G
H
280
SUPREME COURT REPORTS
[2020] 12 S.C.R.
petition before the Jharkhand High court and the same was pending,
held that the order of stoppage of pension is part of retirement
benefit, and petitioner ought to have filed the writ petition before
the Jharkhand High Court – Hence, the writ petition challenging
letters was again dismissed on ground of lack of territorial
jurisdiction – The LPA filed against the order of the Single Judge
was also dismissed – On appeal, held: The Single Judge of the
High Court did not correctly consider the facts and pleadings in
the writ petitions filed – The earlier writ petition was filed for refund
of wrongly withheld/ illegally detained amount and the subsequent
writ petition challenging letters dated 07.10.2013 and 06.11.2013
was filed when payment of pension after 08 years was stopped and
husband of appellant was directed to return the amount of more
than Rs.08 Lakhs – The cause of action for filing a subsequent writ
petition was entirely different – The Single Judge of the High Court
committed error in dismissing the subsequent writ petition because
of dismissal of earlier writ petition on the ground of lack of territorial
jurisdiction – For a retiree, who is settled and receiving pension at
Darbhanga, 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 part cause of action had arisen in the
territorial jurisdiction of Patna High
Court as the husband of
appellant was continuously receiving pension for last 8 years in
Darbhanga – The stoppage of pension at the same place gave a
cause of action – Thus, the said writ petition is revived at the Patna
High Court.
Allowing the appeal, the Court
HELD: 1. The Single Judge of the High Court 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
A
B
C
D
E
F
G
H
281
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 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. [Para 15][290-D-G]
2. The second reason given by Single Judge that petitioner
ought to have filed the writ petition before the Jharkhand High
Court also does not commend to this Court. 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. [Para 16][290-G-H; 291-A]
3. Form the facts of the present case, this Court is 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 husband of appellant 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 husband of appellant had opted
for receiving his pension in State Bank of India, Darbhabga, 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. This Court
thus, is of the view that the view of the 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 petitioner.
Therefore, the writ petition stands revived before Patna High
Court. [Para 29][298-F-H; 299-A-B]
SHANTI DEVI ALIAS SHANTI MISHRA v. UNION OF INDIA
& ORS.
A
B
C
D
E
F
G
H
282
SUPREME COURT REPORTS
[2020] 12 S.C.R.
Oil and Natural Gas Commission v. Utpal Kumar Basu
and Ors. (1994) 4 SCC 711 : [1994] 1 Suppl. SCR
252; Navinchandra N. Majithia v. State of Maharashtra
and Ors. (2000) 7 SCC 640 : [2000] 3 Suppl. SCR 82;
Kunjan Nair Sivaraman Nair v. Narayanan Nair and
Ors. (2004) 3 SCC 277 : [2004] 2 SCR 202; Kusum
Ingots & Alloys Ltd. v. Union of India and Anr. (2004)
6 SCC 254 : [2004] 1 Suppl. SCR 841; Nawal Kishore
Sharma v. Union of India and Ors. (2014) 9 SCC 329 :
[2014] 7 SCR 1027 – relied on.
Saryu Singh v. The Union of India and Ors. 2015 (2)
PLJR 256 – referred to.
Case Law Reference
[1994] 1 Suppl. SCR 252
relied on
Para 21
[2000] 3 Suppl. SCR 82
relied on
Para  22
[2004] 2 SCR 202
relied on
Para 24
[2004] 1 Suppl. SCR 841
relied on
Para 25
[2014] 7 SCR 1027
relied on
Para 26
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3630
of 2020.
From the Judgment and Order dated 03.05.2018 of the High Court
of Judicature at Patna in Letters Patent Appeal No. 1265 of 2017.
Arvind Kumar Gupta, Rishi Bharadwaj, Shaurya Dogra,
Abhiesumat Gupta, Jayant K. Sud, Adv. G.S. Makker, Sreekumar C.N.,
Bhuvan Kapoor, Uddyam Mukherjee, Krishnayan Sen, Lalit Kumar,
Kaustubh Shukla, Parijat Kishore, Abhay Singh, Advs. for the appearing
parties.
A
B
C
D
E
F
G
H
283
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted.
2. This appeal has been filed questioning the Division Bench
judgment of Patna High Court in Letters Patent Appeal No.1265 of
2017 dismissing the Letters Patent Appeal of the appellant. Letters Patent
Appeal was filed against the judgment of learned Single Judge dated
04.08.2017 by which Writ Petition No.5999 of 2014 filed by her late
husband in which she was substituted after death of her husband was
dismissed by learned Single Judge on the ground of lack of territorial
jurisdiction.
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
SHANTI DEVI ALIAS SHANTI MISHRA v. UNION OF INDIA
& ORS. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
284
SUPREME COURT REPORTS
[2020] 12 S.C.R.
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
A
B
C
D
E
F
G
H
285
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
SHANTI DEVI ALIAS SHANTI MISHRA v. UNION OF INDIA
& ORS. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
286
SUPREME COURT REPORTS
[2020] 12 S.C.R.
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 of 2017 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.
4. We have heard Shri Arvind Kumar Gupta, learned counsel for
appellant, Shri Sreekumar C.N., for the respondent Nos. 1 to 3 and
Shri Kaustubh Shukla for respondent Nos. 5 and 8. Shri Uddyam
Mukherjee appeared for respondent No.4.
5. Learned counsel for the appellant submits that High Court
committed error in dismissing the writ petition on the ground of lack of
territorial jurisdiction. High Court of judicature at Patna had territorial
jurisdiction to entertain the writ petition. The part of cause of action had
arisen within the territorial jurisdiction of Patna High Court. Late Shri
B.N. Mishra was receiving pension from State Bank of India, Darbhanga
w.e.f. May, 2005 after his retirement on 30.04.2005. After issuance of
order dated 07.10.2013 and 06.11.2013 directing for refund of amount
of Rs.8.01.334/- and 8,09,268/- and stopping the
pension w.e.f. November,
2013, the cause of action arose at Darbhanga where late Shri B.N.
Mishra was residing and receiving pension. The earlier Writ Petition
No.13955 of 2006 was filed on different cause of action where the
substantial prayer was for refund of the amount illegally deducted
whereas Writ Petition No.5999 of 2014 was on entirely different cause
of action. Late Shri B.N. Mishra was receiving pension at Darbhanga,
which pension having been stopped from November, 2013, the cause of
action arose within the territorial jurisdiction of Patna High Court and
learned Single Judge as well as the Division Bench erred in dismissing
the writ petition relying on dismissal of earlier writ petition whereas cause
of action of both the writ petitions were different and the Writ Petition
No. 5999 of 2014 could not have been dismissed on the ground of lack
of territorial jurisdiction.
A
B
C
D
E
F
G
H
287
6. Learned counsel for the respondent Nos.1 to 3 submits that the
writ petition had rightly been dismissed on the ground of lack of territorial
jurisdiction. He submits that late Shri B.N. Mishra after dismissal of the
writ petition had filed writ petition in the Jharkhand High Court, which
writ petition was still pending when he filed Writ Petition No.5999 of
2014 and the writ petition could not have been entertained by Patna
High Court. Learned counsel for the respondent Nos. 1 to 3 does not
dispute that part of cause of action arose in territorial jurisdiction of
Patna High Court, however, he submits that on the principle of forum
conveniens, the writ petition could not have been entertained at Patna
and the writ petition ought to have been prosecuted in the Jharkhand
High Court.
7. Learned counsel for the respondent Nos. 5 and 8, Shri Kaustubh
Shukla submits that late Shri B.N. Mishra had served in Eastern Coal
Fields Ltd. at West Bengal and had retired on 30.04.2005 from Burdwan,
West Bengal. It is submitted that Shri B.N. Mishra having accepted the
jurisdiction of the Jharkhand High Court could not have filed writ petition
at Patna High Court. The husband of the appellant had not opted for the
Coal Mines Pension Scheme in 1998 but he opted for the Scheme second
time in the year 2002 after subsequent notification dated 09.01.2002.
The deductions made by Regional Provident Fund Commissioner was in
accordance with Coal Mines Pension Scheme, 1998.
Earlier writ petition
filed by petitioner being Writ Petition No.13955 of 2006 having bene
dismissed by the Patna High Court on the ground of lack of territorial
jurisdiction and no appeal having been filed by Shri B.N. Mishra the said
judgment became final. Shri B.N. Mishra after dismissal of his earlier
writ petition filed Writ Petition No.4930 of 2013 before the Jharkhand
High Court at Ranchi, which clearly proves that Shri B.N. Mishra had
accepted the jurisdiction of Jharkhand High Court and pursued his writ
petition there. The mere fact that letters dated 07.10.2013 and 06.11.2013
were received at Darbhanga, the Patna High Court shall have no
territorial jurisdiction to entertain the writ petition.
8. Learned counsel appearing for the respondent No.4 also
adopted the above submissions.
9. Learned counsel for the parties have also placed reliance on
various judgments of this Court as well as judgment of Patna High Court,
which shall be noticed while considering the submissions in detail.
SHANTI DEVI ALIAS SHANTI MISHRA v. UNION OF INDIA
& ORS. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
288
SUPREME COURT REPORTS
[2020] 12 S.C.R.
10. From the submissions of the learned counsel for the parties
and the materials on record, the following questions have arisen in this
appeal:-
(i)
Whether the writ petition filed by late Shri B.N. Mishra being
Writ Petition No. 5999 of 2014 is similar to Writ Petition No.
13955 of 2006 and the Patna High Court had territorial
jurisdiction to entertain the writ petition?
(ii) Whether part of cause of action for filing the Writ Petition
No. 5999 of 2014 arose within the territorial jurisdiction of
Patna High Court?
11. Both the questions being interrelated are being taken together.
We may first notice the relevant pleadings in Writ Petition No. 5999 of
2014, which are the material facts or integral facts for claiming relief in
the writ petition. In paragraph 5 of the writ petition, petitioner had pleaded
that he retired on 30.04.2005 and thereafter settled at his native place in
Darbhanga District, State of Bihar where in his savings account with
State Bank of India, Darbhanga his monthly pension is being paid since
May, 2005.  In paragraphs 20 and 22, petitioner has pleaded about the
letter dated 07.10.2013 issued by Regional Provident Fund Commissioner,
Region-1, Asansol and the letter dated 06.11.2013. Paragraphs 5, 20 and
22 are extracted below for ready reference:-
“5. That the petitioner was subsequently promoted as Personnel
Manager in Moira Colliery, Eastern Coal Fields Ltd., Bankola Area,
P.O. Moira, Dist.
– Burdwan from where he retired from service
on 30/04/2005 and thereafter settled at his native village in
Darbhanga Dist., Bihar where in his S/B A/C with State Bank of
India, Darbhanga his monthly pension is being paid since May,
2005.
Copy of notice of Super-annuation vide letter no. ECL/
C-5 (D) Superannuation/EE 1572 dated 23/24/11/2004
is annexed herewith and marked as Annexure-1.
20. That upon receipt of a copy of writ petition from the learned
Central Govt. Counsel the Regional P.F. Commissioner, Region-
1, Asansol issued a notice vide No. CPF/32/Legal/B.N. Mishra/
R-1/ASN/3481 dated 7/10/2013 whereby he declared the payment
of pension to the petitioner from May 2005 till date as wholly
A
B
C
D
E
F
G
H
289
against the provisions of Para-15 of Coal Mines Pension Scheme
1998 which says that option once exercised shall be final and
since the petitioner had firstly submitted a negative option so the
subsequent submission of option in the affirmative is against the
Scheme. Further the petitioner was also directed to refund the
entire amount of pension amounting to Rs.8,01,334/- with interest
paid to him from May 2005 to October 2013. Furthermore, the
pensioner was also informed vide the aforesaid notice that payment
of pension to him shall be stopped from November, 2013.
Copy of letter no. CPF/32/Legal/B.N. Mishra/R-1/ASN/
3481 dated 7/10/2013 along with relevant portion of Para-
15 of CMPS 1998 is annexed herewith and marked as
Annexure-12.
22. That the Regional P.F. Commissioner did not wait for a reply
from the petitioner to the notice issued by him and instead in a
haste issued letter No. CPF/32/1/Legal/B.N. Mishra/R-1/4056
dated 6/11/2013 whereby he stopped payment of pension to the
petitioner from the month of Nov. 2013 and also directed him to
refund the entire amount of pension paid to the petitioner from
May 2005 to Oct. 2013 amounting to Rs.8,09,268/-.
Copy of letter no. CPF/32/1/Legal/B.N. Mishra/R-1/4056
dated 6/11/2013 is annexed herewith and marked as
Annexure-14.”
12. The copy of the letters dated 07.10.2013 and 06.11.2013 were
also annexed with the writ petition, which were addressed to late Shri
B.N. Mishra at his address of Village Bhusakoul,
Police Station Darbhanga
Sadar, District Darbhanga, State of Bihar. Petitioner after receipt of the
letter dated 07.10.2013 immediately represented on 07.11.2013. 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
SHANTI DEVI ALIAS SHANTI MISHRA v. UNION OF INDIA
& ORS. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
290
SUPREME COURT REPORTS
[2020] 12 S.C.R.
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.
14. In the LPA against the order of learned Single Judge, Division
Bench vide judgment dated 03.05.2018 after quoting paragraphs 4 and 5
of the judgment of the learned Single Judge, Patna High Court observed
that:-
“We do not find any legal infirmity in the view so taken by the
learned Single Judge. The appeal is dismissed.”
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
A
B
C
D
E
F
G
H
291
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 08
years 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.
18. Mulla on the Code of Civil Procedure while commenting on
Section 20 of the Civil Procedure Code defined cause of action in
following words:-
“The expression ‘cause of action’ has acquired a judicially settled
meaning. In the restricted sense ‘cause of action’ means the
circumstances forming the infraction of the right or the immediate
occasion for the action. In the wider sense, it means the necessary
conditions for the maintenance of the suit, including not only the
infraction of the right, but the infraction coupled with the right
itself. Compendiously the expression means every fact by which
it would be necessary for the plaintiff to prove, if traversed, in
order to support his right to the judgment of the Court………….”
19. P. Ramanatha Aiyar in Advanced Law Lexicon, 3rd Edition,
Volume 1, has defined the cause of action in following words:-
“’Cause of action’ has been defined as meaning simply a factual
situation the existence of which entitles one person to obtain from
the Court a remedy against another person. The phrase has been
held from earliest time to include every fact which is material to
be proved to entitle the plaintiff to succeed, and every fact which
a defendant would have a right to traverse. “Cause of action” has
also been taken to mean that particular act on the part of the
defendant which gives the plaintiff his cause of complaint, or the
SHANTI DEVI ALIAS SHANTI MISHRA v. UNION OF INDIA
& ORS. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
292
SUPREME COURT REPORTS
[2020] 12 S.C.R.
subject matter of the grievance founding the action, not merely
the technical cause of action.”
20. Black’s Law Dictionary defines the cause of action in following
words:-
“A group of operative facts giving rise to one or more bases for
suing; a factual situation that entitles one person to obtain a remedy
in court from another person…………”
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.
A
B
C
D
E
F
G
H
293
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 v. 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.”
22. This Court in Navinchandra N. Majithia Vs. State of
Maharashtra and Ors., (2000) 7 SCC 640 had occasion to consider
territorial jurisdiction of High Court under Article 226(2). Dealing with
constitutional amendment made in Article 226(2), this Court laid down
following in paragraph 37:-
“37. The object of the amendment by inserting clause (2)
in the article was to supersede the decision of the Supreme Court
in Election Commission v. Saka Venkata Subba Rao [AIR 1953
SC 210] and to restore the view held by the High Courts in the
decisions cited above. Thus the power conferred on the High
SHANTI DEVI ALIAS SHANTI MISHRA v. UNION OF INDIA
& ORS. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
294
SUPREME COURT REPORTS
[2020] 12 S.C.R.
Courts under Article 226 could as well be exercised by any High
Court exercising jurisdiction in relation to the territories within
which “the cause of action, wholly or in part, arises” and it is no
matter that the seat of the authority concerned is outside the
territorial limits of the jurisdiction of that High Court. The
amendment is thus aimed at widening the width of the area for
reaching the writs issued by different High Courts.”
23. It was further held that the collocation of the words “cause of
action, wholly or in part, arises” seems to have been lifted from Section
20 of the Code of Civil Procedure. This Court also quoted the definition
of “cause of action” given by Lord Esher in Read Vs. Brown in paragraph
39. In paragraphs 38, 39 and 41, following was laid down:-
“38. “Cause of action” is a phenomenon well understood in legal
parlance. Mohapatra, J. has well delineated the import of the said
expression by referring to the celebrated lexicographies. The
collocation of the words “cause of action, wholly or in part, arises”
seems to have been lifted from Section 20 of the Code of Civil
Procedure, which section also deals with the jurisdictional aspect
of the courts. As per that section the suit could be instituted in a
court within the legal limits of whose jurisdiction the “cause of
action wholly or in part arises”. Judicial pronouncements have
accorded almost a uniform interpretation to the said
compendious
expression even prior to the Fifteenth Amendment of the
Constitution as to mean “the bundle of facts which would be
necessary for the plaintiff to prove, if traversed, in order to support
his right to the judgment of the court”.
39. In Read v. Brown [(1888) 22 QBD 128 : 58 LJQB 120 : 60
LT 250 (CA)] Lord Esher, M.R., adopted the definition for the
phrase “cause of action” that it meant
“every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the judgment
of the court. It does not comprise every piece of evidence
which is necessary to prove each fact, but every fact which is
necessary to be proved”.
41. 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
A
B
C
D
E
F
G
H
295
Rajasthan v. Swaika Properties [(1985) 3 SCC 217]. A three-
Judge Bench of this Court in Oil and Natural Gas
Commission v. Utpal Kumar Basu [(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. Venkatachaliah, C.J.
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.
(SCC p. 722, para 12)
“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 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 do hope that
we will not have another occasion to deal with such a situation.”
24. In Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and
Ors., (2004) 3 SCC 277, this Court explained the expression “cause
of action” and has quoted with approval the cause of action as defined
by Halsbury’s Laws of England in paragraph 16 and 17:-
“16. The expression “cause of action” has acquired a judicially
settled meaning. In the restricted sense cause of action means
the circumstances forming the infraction of the right or the
immediate occasion for the action. In the wider sense, it means
the necessary conditions for the maintenance of the suit, including
not only the infraction of the right, but the infraction coupled with
SHANTI DEVI ALIAS SHANTI MISHRA v. UNION OF INDIA
& ORS. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
296
SUPREME COURT REPORTS
[2020] 12 S.C.R.
the right itself. Compendiously the expression means 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. Every
fact which is necessary to be proved, as distinguished from every
piece of evidence which is necessary to prove each fact, comprises
in “cause of action”.
17. In Halsbury’s Laws of England (4th Edn.) it has been stated
as follows:
“‘Cause of action’ has been defined as meaning simply a factual
situation the existence of which entitles one person to obtain
from the court a remedy against another person. The phrase
has been held from earliest time to include every fact which is
material to be proved to entitle the plaintiff to succeed, and
every fact which a defendant would have a right to traverse.
‘Cause of action’ has also been taken to mean that particular
act on the part of the defendant which gives the plaintiff his
cause of complaint, or the subject-matter of grievance founding
the action, not merely the technical cause of action.”
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.”
26. Another judgment which has been relied by learned counsel
for the appellant is Nawal Kishore Sharma Vs. Union of India and
Ors., (2014) 9 SCC 329. In the above case, the petitioner had filed a
writ petition seeking various reliefs including disability compensation and
pecuniary damages. The petitioner approached the Patna High Court
for grant of various reliefs. Although, he was declared unqualified by
orders issued by the Shipping Department, Government of India, Mumbai.
A
B
C
D
E
F
G
H
297
This Court held that Patna High Court has a jurisdiction to entertain the
petition. Following was laid down in paragraph 17:-
“17. We have perused the facts pleaded in the writ petition and
the documents relied upon by the appellant. Indisputably, the
appellant reported sickness on account of various ailments including
difficulty in breathing. He was referred to hospital. Consequently,
he was signed off for further medical treatment. Finally, the
respondent permanently declared the appellant unfit for sea service
due to dilated cardiomyopathy (heart muscle disease). As a result,
the Shipping Department of the Government of India issued an
Order on 12-4-2011 cancelling the registration of the appellant as
a seaman. A copy of the letter was sent to the appellant at his
native place in Bihar where he was staying after he was found
medically unfit. It further appears that the appellant sent a
representation from his home in the State of Bihar to the respondent
claiming disability compensation. The said representation was
replied by the respondent, which was addressed to him on his
home address in Gaya, Bihar rejecting his claim for disability
compensation. It is further evident that when the appellant was
signed off and declared medically unfit, he returned back to his
home in the district of Gaya, Bihar and, thereafter, he made all
claims and filed representation from his home address at Gaya
and those letters and representations were entertained by the
respondents and replied and a decision on those representations
were communicated to him on his home address in Bihar.
Admittedly, the appellant was suffering from serious heart muscle
disease (dilated cardiomyopathy) and breathing problem which
forced him to stay in his native place, wherefrom he had been
making all correspondence with regard to his disability
compensation. Prima facie, therefore, considering all the facts
together, a part or fraction of cause of action arose within the
jurisdiction of the Patna High Court where he received a letter of
refusal disentitling him from disability compensation.”
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
SHANTI DEVI ALIAS SHANTI MISHRA v. UNION OF INDIA
& ORS. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
298
SUPREME COURT REPORTS
[2020] 12 S.C.R.
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 v. 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 Court’s 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, Darbhabga, State
A
B
C
D
E
F
G
H
299
of Bihar, which was his native place, fromwhere 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
petitioner.
30. Another submission which has been advanced by learned
counsel for the respondent Nos. 1 to 3 is that the writ petition was rightly
dismissed on the principle of forum non conveniens. Forum non
conveniens has been defined by P. Ramanatha Aiyar, Advanced Law
Lexicon, 3rd Edition in following words:-
“The principle that a case should be heard in a Court of the place
where parties, witnesses, and evidence are primarily located.”
31. Black’s Law Dictionary defines forum conveniens in following
words:-
“The court in which an action is most appropriately brought,
considering the best interests and convenience of the parties and
witnesses.”
32. This Court in Kusum Ingots & Alloys Ltd. (supra) has
also referred to principle of forum conveniens. Following was stated in
paragraph 30:-
“Forum conveniens
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 v. Dewan Jagbir
Sawhney [AIR 1941 Cal 670], Madanlal Jalanv. Madanlal [AIR
1949 Cal 495], Bharat Coking Coal Ltd. v. Jharia Talkies &
Cold Storage (P) Ltd. [1997 CWN 122], S.S. Jain & Co. v.
Union of India [(1994) 1 CHN 445] and New Horizons Ltd. v.
Union of India [AIR 1994 Del 126].”
SHANTI DEVI ALIAS SHANTI MISHRA v. UNION OF INDIA
& ORS. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
300
SUPREME COURT REPORTS
[2020] 12 S.C.R.
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 forumnon conveniens has no substance.
34. In result, we allow the appeal, set aside the judgment of the
Patna High Court and hold that Writ Petition No. 5999 of 2014 was fully
maintainable at Patna High
Court and learned Single Judge and Division
Bench committed error in dismissing the writ petition on the ground of
lack of territorial jurisdiction. The writ petition stands revived before the
Patna High Court.
35. We are also of the view that appellant is entitled for an interim
order in the writ petition for her sustenance. The appellant’s husband,
who had filed the writ petition had died during the pendency of the writ
petition. After his death, the appellant, the widow was substituted. Six
years have passed after filing of the writ petition wherein stoppage of
pension was questioned. Appellant being the widow is also entitled for
pensionary benefit for her sustenance since her husband was receiving
pension. We are of the view that during the pendency of the writ petition
the appellant is entitled to be paid provisional pension which shall be
subject to final decision in the writ petition. We, therefore, direct
respondent Nos.4 to 8 to ensure that provisional pension to the appellant
is paid from the month of December, 2020, which shall be subject to
final orders passed in the writ petition. The appeal is allowed accordingly.
Ankit Gyan
Appeal allowed.