Antony Dominic, J. C.R. 1. W.P(C).22184/13 was filed by the first respondent herein, seeking to quash Ext.P1 order issued by the appellant, the first respondent in the writ petition, and to direct the appellant to allow him to join duty as Professor (Management). When the writ petition came up for orders, appellant raised an objection that since the entire cause of action had arisen at Chennai, the writ petition filed in this Court was not maintainable. By order dated 27.11.2013, the objection was overruled and the writ petition was held maintainable. It is aggrieved by this order, W.A.743/14 is filed. Since the judgment in the writ appeal will have an impact on the maintainability of the writ petition, with the consent of the counsel on both sides, W.P(C).22184/13 was also called for to the Full Bench.
2. When the writ appeal came up for consideration before a Division Bench, on behalf of the respondents, reliance was placed on the Division Bench judgment of this Court in Selvin Abraham v. Punjab & Sind Bank [2013 (3) KLT 481]. However, on going though the said judgment, the Division Bench felt that the view taken in Selvin Abraham (supra) was apparently in conflict with the principles laid down by a Full Bench of this Court in Nakul Deo Singh
v. Deputy Commissioner [1999 (3) KLT 629 (FB)].
Accordingly, by order dated 12.6.2014, the writ appeal was referred to be considered by a Full Bench.
3. Subsequent to the reference of the writ appeal, W.P (C).8678/14 came up for consideration before a learned single Judge, where also, an objection regarding the maintainability of the writ petition for want of territorial jurisdiction over the cause of action was raised, placing reliance on the judgment of the Full Bench in Nakul Deo Singh (supra) and the petitioner therein placed reliance on the judgment in Selvin Abraham (supra). When the matter was considered on 17.6.2014, the learned single Judge was informed that doubting the correctness of the judgment in Selvin Abraham (supra), W.A.743/14 is already referred and is pending consideration of a Full Bench. Accordingly, the learned single Judge passed order dated 17.6.2014, directing to list this writ petition along with W.A.743/14. This is the background in which these cases are listed before the Full Bench.
4. Turning to the judgement in Selvin Abraham, we should first clarify that if we find that this judgement was rendered wrongly applying the principles laid down by the Full Bench in Nakul Deo Singh, the necessary consequence would be reversal of Selvin Abraham. Therefore, we will examine Selvin Abraham in that limited perspective only.
5. In Selvin Abraham (supra), the correctness of which is doubted, while working as Assistant Manager in the Punjab & Sind Bank at Coimbatore, the appellant was proceeded against for certain misconducts. Enquiry was conducted at Coimbatore and the charges were proved. The Disciplinary Authority dismissed him from service. This order was served on him at his native place in Kerala. His appeal and review were also dismissed. He filed a writ petition before the Kerala High Court challenging the order of suspension, dismissal and the orders passed by the appellate and review authorities. Objection was raised by the bank that this Court lacked territorial jurisdiction to entertain the writ petition as the entire cause of action arose outside the State. This contention was accepted by the learned single Judge, relying on the judgment of the Full Bench in Nakul Deo singh (supra) and the writ petition was accordingly dismissed.
6. Before the Division Bench, the contention raised was that the order of dismissal became effective only when it was served on the appellant at his address at Kottayam in the State of Kerala and therefore, an integral part of the cause of action arose within the jurisdiction of this Court. The appellant also relied on the Apex Court judgments in State of Punjab
v. Amarsingh Harika [AIR 1966 SC 1313], Union of India v. P.Kunhabdulla [1985 (1) SLJ 471], Bipromasz Bipron Trading SA v. Bharat Electronics Limited [(2012) 6 SCC 384] and Kusum Ingots & Alloys Ltd. v.
Union of India [(2004) 6 SCC 254]. On the other hand, on behalf of the Bank, reliance was placed on the judgments in Nakul Deo Singh (supra) and Mosaraf Hossain Khan v. Bhagheeratha Engineering Ltd. [(2006) 3 SCC 658].
7. Finally, the Division Bench held that, “we are of the view that following Kusum Ingots & Alloys Ltd. (supra), an order of dismissal when it becomes effective definitely forms an integral part of the cause of action. Service of an order of dismissal is not a mere service of a notice, it definitely gives rise to a cause of action and such service of notice forms an integral part of the cause of action”.
On that basis, the Division Bench set aside the judgment of the learned single Judge and directed consideration of the writ petition on merits. It is the correctness of this judgment which is referred for consideration by the Full Bench.
8. Before we analyse the various findings and conclusions of the Division Bench in Selvin Abraham (supra), it is apposite to understand the facts considered and the principles laid down in Nakul Deo Singh (supra). In that case, reference to the Full Bench was necessitated on account of an apparent conflict between the principles laid down in Union of India v. P.Kunhabdulla [1985 (1) SLJ 331] and Thomaskutty v. Union of India [1994 (2) KLT 258].
9. In Kunhabdulla v. Union of India [1983 KLT 1017], where, an order of removal from service passed outside the State and served in Kerala was challenged, learned single Judge of this Court held that;
“when an order of dismissal or removal from service is sent out, it is effective on the authority concerned, but so far as the Government servant is concerned, it becomes effective only when he is appraised of it either by oral communication or by actual service of it upon him”.
It was accordingly held that this Court can entertain the writ petition challenging the orders which the petitioner received through post while he was residing within the territorial jurisdiction of this Court.
10. This judgment of the learned single Judge was affirmed in appeal in the judgment in Union of India
v. P.Kunhabdulla [1985 (1) SLJ 331]. The Division Bench also held that the order of removal becomes effective only on acceptance of the order on communication by registered post and since the order was communicated to the aggrieved while he was residing within the territorial jurisdiction of this Court, it must be held that part of the cause of action to challenge the order of removal from service arose within the State of Kerala where the order became effective by service on the employee. The Division Bench also held that where the impugned order is made by an authority in one State, which becomes effective on service in another State, the High Court in the latter State will also have jurisdiction as part of the cause of action arises therein.
11. In Thomaskutty (supra), another Division Bench of this Court held that mere service of notice cannot give rise to cause of action unless the service of notice is an integral part of the cause of action. It was held that since the appeal was rejected by the authority located beyond the territorial jurisdiction of the Kerala High Court, merely because intimation of the rejection of appeal was communicated to the petitioner who was then within the jurisdiction of this High Court, that would not confer on this Court jurisdiction under Article 226 of the Constitution of India to entertain a writ petition challenging the dismissal.
12. In Nakul Deo Singh (supra), the Full Bench considered the question whether the decision rendered by an authority located outside the jurisdiction of this Court, when communicated to the party while he is within the jurisdiction of this Court, is a fact in the bundle of facts constituting the cause of action. While examining this question, the Full Bench observed that what really arose for its decision was whether the fact that on communication of the order it becomes effective as far as the person is concerned, gives him the right to approach this Court for relief. These questions were considered by the Full Bench in paragraphs 12 to 22 of the judgment and, being relevant, these paragraphs are extracted below for reference:
“12. What is seen from the conflict as reflected above is that the question for consideration would be whether the fact that a decision rendered by an authority located outside the jurisdiction of this court is communicated to the party while he is within the jurisdiction of this court is a fact in the bundle of facts constituting the cause of action. The view that the receipt of the copy of the order would constitute a fact giving rise to the cause of action is founded on the theory that an order becomes effective as regards the party when it is communicated to the party and since what he is aggrieved by is an effective order it has to be held that the receipt of communication would also be part of the cause of action enabling the party to approach the High Court within the jurisdiction of which he was residing or working at the relevant time. The other view is founded on the fact that mere service of the order is not a fact which is part of the bundle of facts constituting the cause of action and the cause of action arises when the appeal is dismissed by the appellate authority from the seat of the appellate authority. This difference in view point requires to be considered now.
13. The leading decision in support of the theory that since only on communication of the order it becomes effective as against the person aggrieved and hence the act of communication and receipt of the copy of the order also forms a fact in the bundle of facts giving rise to the cause of action appears to be the decision in W. W. Joshi v. State of Bombay (AIR 1959 Bom.363). According to the said decision for a Government servant to challenge an order against him, it was not sufficient to establish that an order of termination of his service has been made. That Government servant must further prove that the consequences of that order fell on him. The factum of the passing of the order by itself cannot afford him a ground to claim relief at the hands of the court. Therefore, for a claimant of that kind cause of action would arise at the place where the order of termination of service was made and also at the place where its consequence fell on the servant. This decision was followed by that court in Damamal v. Union of India(AIR 1967 Bom. 355). The Division Bench in that case said that even if the order were one made by the authority in New Delhi, there could hardly be any doubt that the effect of the order fell on the petitioner in that case at Ullas Nagar where he resided. It was also stated that it was not in dispute that the proceedings that would be taken against the petitioner in consequence of the impugned order would be by officers located within the territory in relation to which that court exercised jurisdiction. It may have to be noted here straightaway that this particular limb is missing in the present cases since both the petitioners have already suffered the consequence of the decision outside the territorial jurisdiction of this High Court though one of them came to this State as a consequence of the orders made against him and the other after he had already suffered the consequences outside the territory.
14. The other decision that has been relied on in support of the theory of service of the order also forming part of the cause of action is the decision of the Madras High Court in Veeri Chattiar v. S.T. Officer, Bombay (AIR 1971 Mad. 155). Therein the Madras High Court held that cause of action is the bundle of facts enabling a party to maintain a legal proceeding. The impact on the addressee caused by a notice of the taxing authority and his proposal to assess relate to that bundle and is thus cause of action in part for the issue of a writ against the taxing authority. A Writ Petition will therefore lie in the High Court of the place of the addressee even if the authority is situate outside that High Court’s territorial limits. Their Lordships did not refer to any precedent in support of their conclusion. Along the same lines is the view expressed in M/s. Jeferee and Karim v.
A.I.T.O. (1998 (2) KLT 39) by a learned Single Judge who said that an order of assessment comes into force only when it is communicated. Ofcourse that was not a case relating to jurisdiction.
15. The decision of the Karnataka High Court in D.L Suresh v. Institute of Chartered Accountants (AIR 1983 Karnataka 43) related to a case where the nomination papers sent by registered post by certain Chartered Accountants from Banglore within the jurisdiction of the Karnataka High Court were rejected by the Regional Council for the Institute of Chartered Accountants of India at its office in Delhi. The orders rejecting the nominations were despatched from Delhi to the petitioners in Bangalore. The Karnataka High Court stated that part of the cause of action if not whole had arisen within the territorial jurisdiction of the Karnataka High Court and hence the Karnataka High Court could exercise jurisdiction under Art 226 of the Constitution. The court followed an earlier decision in Dr. P.S. Rao v. Union Government (AIR 1974 Mysore 39) in support of its conclusion. A similar view was taken by the Andhra Pradesh High Court in Vruddhule Kalyanerama Rao v. NABARD, Bombay ((1994) 4 SLR 166). The learned Judge referred to the decision of the Kerala High Court in P.P. Gopalan’s case and also the decision of the Calcutta High Court in S.K. Chatterji v. Coalfields Ltd. (1986 Lab IC 50).
16. In Union of India v. Oswal Woollen Mills Ltd. (1984 (2) SCC 646) the Supreme Court held that a Writ Petition under Art 226 of the Constitution should be filed either where the registered office of the company is situate or at the place where the particular respondents against whom primary relief was sought are located. Their Lordships pointed out that an inevitable result of filing of writ petitions elsewhere than at the place where the concerned office and the relevant records are located would be to delay prompt return and contest. This was followed by another decision of the Supreme Court in State of Rajasthan v. M/s. Swaika Properties (MR 1985 SC 1289). In that decision their Lordships held that the very service of notice in the State of West Bengal under S. 55 (2) of Rajasthan Urban Improvements Act on the owner of the land situate in the State of Rajasthan informing him of me State Government’s proposal to acquire the land for public purpose did not constitute an integral part of the cause of action necessary to invoke the Calcutta High Court’s jurisdiction to entertain a petition under Art 226 of the Constitution challenging the validity of the notification for acquiring the land. The cause of action was a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The Notification issued by the Government of the State of Rajasthan under S. 52(1) of the Rajasthan Act became effective the moment it was published in the Official Gazette as thereupon the notified land became vested in the state Government free from all encumbrances. It was not necessary for the owner to plead the service of notice on him under S.52(2) for the grant of an appropriate writ, direction or order under Art.
226 of the Constitution for quashing the Notification issued by the State Government under S. 52(1) of the Act
17. In Hindustan Sugars v. Union of India (AIR 1985 Cal. 17) the Calcutta High Court declined jurisdiction by holding that when respondents and the concerned authorities were outside the territorial limits of the jurisdiction of the Calcutta High Court, the fact that the petitioner was a sugar mill having its selling centre at Calcutta where from sugar was being sold, was not sufficient to confer jurisdiction on the Calcutta High Court to entertain a challenge against the circular regarding exemption provided under the concerned circular by the Central Government. In S.L. Ahuja v. State of Rajasthan (1988 (1) SLR 163) Delhi High Court took the view that a person who was employed in the Rajasthan Government service and who sought to raise a claim regarding his pensionary benefits while he was residing in Delhi could not maintain a writ petition in the Delhi High Court on the ground that after his retirement from service in the State of Rajasthan he had taken up residence in Delhi and had made a claim for his pension by ways of correspondence from Delhi and had received a reply in Delhi, not accepting his claim. Following the decision of the Supreme Court in Swaika Properties’ case, the Calcutta High Court held in P.K. Mondal v. Union of India (1989(7) SLR 529) that when an order imposing punishment of dismissal was passed in Madras after a departmental enquiry held in Madras, and an appeal against that order filed before the appellate authority in Delhi was dismissed by an order passed from Delhi, the mere fact that that order dismissing the appeal was conveyed to the petitioner at Calcutta could not enable the aggrieved person to invoke the jurisdiction of the High Court of Calcutta under Art 226 of the Constitution. The High Court held that it had no territorial jurisdiction to entertain the writ petition. After referring to the relevant decisions including the one in M/s. Swaika Properties and the one in Oil and Natural Gas Commission v. Utpal Kumar Basu (1994 (4) SCC 711) the Calcutta High Court again held in Kishori Prasad Sinha v. Union of India (1997 (5) SLR 353) that a writ petition could not be maintained in the Calcutta High Court on the allegation that the consequence of non-selection of the petitioner to a post outside the State by the authority that held the selection procedure outside the State fell on the petitioner at Calcutta and hence Writ Petition could be maintained in the Calcutta High Court. In Oil and Natural Gas Commission v. Utpal Kumar Basu (1994 (4) SCC 711) after referring to the Swaika Properties’ case and the passage from Mulla on Code of Civil Procedure quoted therein the Supreme Court set aside the decision of the Calcutta High Court on the ground that the Calcutta High Court had no jurisdiction to entertain the Writ Petition under Art. 226 of the Constitution. The court observed that merely because the petitioner before the High Court was a Calcutta based firm it could not institute proceedings in the Calcutta High Court in a case where a contract was executed at Aligarh, construction work was to be carried out at Aligarh and Arbitrator was appointed at Aligarh and the contract provided that in the event of dispute the Aligarh court alone would have jurisdiction. The court also expressed its anguish at courts really not having jurisdiction assuming jurisdiction.
18. Question had arisen whether the factum of issuance of a notice under S. 80 of the Code of Civil Procedure preceding the institution of the suit could be a fact which constituted the bundle of facts giving rise to a cause of action. High Courts of Bombay, Madras, Calcutta, Madhya Pradesh, Punjab and Patna took the view that a notice under S. 80 of the Code of Civil Procedure is only a requirement as a preliminary step for a legal and valid institution of the suit and that it does not really form or constitute part of the cause of action in the suit itself. After referring to this aspect and the concept of cause of action as accepted by the English courts and after referring to the decisions in S.R. Goyal v. Municipal Board, Kanpur (AIR 1958 SC 1036), State of Punjab v. Amar Singh (AIR 1966 SC 1313), Veeri Chattiar v. S.T. Officer, Bombay (AIR 1971 Mad. 155) and Abdul Sattar v. Union of India (1983 KLT 681) this court in Shipping Corporation of India Ltd. v. Kanda Swami (1986 KLT 924) held that communication to an aggrieved person regarding the action taken against him affecting his right when he was within the boundaries of a particular court would give that court jurisdiction to entertain an action. That of course was a suit It must be noted that in this decision the decision of the Supreme Court in Swaika Properties was not referred to and the decision in S.R. Goyal v. Muncipal Board (AIR 1958 SC 1036) relied on therein was overruled by the Supreme Court in S.S. Rathore v. State of M.P. (AIR 1990 SC 10). The view expressed m State of Punjab v. Amar Singh (AIR 1963 SC 1313) was to the effect that an order become effective after it is communicated to the officer concerned or is otherwise published.
19. What really arise for decision is whether the fact that on communication of the order it becomes effective as far as a person is concerned and gives him the right to approach the court for relief is really a fact which is part of the bundle of facts that constitute a cause of action. It is well recognised that there is a distinction between cause of action and right of action. In American Jurisprudence 2nd Edn. Vol. I at page 541 it is stated as follows:-
“Although the courts sometimes confuse the term ‘cause of action’ and ‘right of action’ and state that right of action at law arises from the existence of a primary right in the plaintiff and the invasion of that right by some delict on the part of the defendant, in a legal sense, these terms are not synonymous or interchangeable. A right of action is the right to presently enforce a cause of action - a remedial right affording redress for the infringment of legal right belonging to some definite person, a cause of action is the operative facts which give rise to such right of action. Right of action does not arose until the performance of conditions precedent to the action and may be taken away by the running of the statute of limitation, through an estoppel, or by other circumstances which do not affect the cause of action. There may be several rights of action and one cause of action and rights may accrue at different times from the same cause”.
The above distinction was referred to by a Full Bench of the Allahabad High Court in Balbir Singh v. Atmaram (AlR 1977 All. 211). Their Lordships held that the terms ‘cause of action’ and ‘right of action’ are not synonymous and interchangeable. Right of action is a right to presently enforce a cause of action - a remedial right affording redress for the infringement of a legal right belonging to some definite person: a cause of action is the operative facts which give rise to such right of action. His Lordship Justice Padmanabhan in Roman Ittiathi v. Pappi Bhaskaran (1989 (2) KLT 377) adopted the same approach and noticed the distinction between cause of action and right of action. In Dayasankar v. Chief of the Air Staff, New Delhi (AIR 1988 All. 36) a Division Bench of the Allahabad High Court held that a right of action is a right to enforce a cause of action. A person residing elsewhere in the country being aggrieved by an order of Government, Central or State or authority or person may have a right of action at law but it can be enforced or the jurisdiction under Art. 226 can be invoked of that High Court only within whose territorial limits the cause of action wholly or in part arises. Cause of action arises by action of the Government or authority and not by residence of the person aggrieved. In a case where an officer in the Indian Air Force was superseded when he was posted at Madras and he sought a direction by filing a Writ Petition in the High Court of Allahabad to command the appointing authority to decide a representation made by him, it was held that the High Court at Allahabad had no jurisdiction since no cause of action arose within the jurisdiction of the High Court at Allahabad which would entitle that officer to approach the High Court at Allahabad, and the direction was sought to the authority whose office was situate in New Delhi. Following this decision and referring to the earlier decisions on the subject, another Division Bench of the Allahabad High Court in Brijblal Singh Gautam v. Union of India (AIR 1998 All. 132) held that illegality in the award of the contract at a station outside the jurisdiction of the High Court of Allahabad could not be entertained in the High Court of Allahabad merely on the ground that the station where the contract was to be performed fell within the jurisdiction of the High Court of Allahabad. In the recent decision of the Supreme Court in C.B.I. Mumbai v. Narayan Diwakar (JT 1999 (3) SC 635) the Supreme Court held that when a case was registered at Bombay a wireless message issued to the respondent at Ita Nagar Arunachal Pradesh to come and see the Inspector C.B.I, at Bombay on its receipt at Ita Nagar does not confer jurisdiction on the High Court at Gauhati under Art. 226 of the Constitution to quash the First Information Report. The Court took the view that the receipt of information by the aggrieved person that he should meet the concerned Inspector at Bombay does not enable that person to approach the High Court which has jurisdiction over the place from where he received the communication.
20. It appears to us that the decisions in M/s. Swaika Properties case and the decision of the Supreme Court and that of the High Court subsequent thereto clearly establish that the receipt of communication by itself does not constitute a fact in the bundle of facts constituting the cause of action. At best receipt of the order or communication only gives the party a right of action based on the cause of action arising out of the action complained of. When that action complained of takes place outside the territorial jurisdiction of the High Court and an appeal therefore is dismissed by an authority located outside the jurisdiction of the High Court cause of action wholly arises outside the jurisdiction of the High Court and Art. 226(2) of the Constitution cannot be invoked to sustain a Writ Petition in this High Court on the basis that a part of the cause of action has arisen within the jurisdiction of this court, merely because the appellate order communicated from the seat of the appellate authority was received while the petitioner was residing or working within the jurisdiction of this court Acceptance of the argument that the situs of the receipt of the order will determine the jurisdiction can lead to a position where a litigant would be in a position to choose his own court for the purpose of redressal of his grievance. All that he need do is to move over to a particular place for receiving the communication from the appellate authority and then approach the High Court of that place with a plea that that court had jurisdiction because the order of the appellate authority was served on him while he was residing within the jurisdiction of that High Court. No litigant can have a right to choose the court for seeking relief and the mere introduction of clause 2 of Art. 226 does not alter that position.
21. It is now settled after the decision of the Supreme Court in S.S. Rathore v. State of M.P. (AIR 1990 SC 10) that when there is an appeal against the original order even in a service dispute, there is a merger of the original order in the appellate order and the decision rendered by the appellate authority whether it be of dismissal, reduction, allowance or modification of the order of the original authority, a cause of action accrues to the aggrieved person to challenge the appellate order since the order of the original authority merges in the order of the appellate authority. What furnishes the cause of action is the rejection of the appeal by the appellate authority. Communication of that order though the order become effective only on such communication to the aggrieved person only furnishes the aggrieved person with a right of action. Receipt of the communication is not a fact in the bundle of facts constituting the cause of action. Even though only on receipt of the order the aggrieved person may be able to challenge that order, receipt of the order cannot be said to be a fact forming the cause of action. For, the cause of action arises on the appeal being dismissed by the authority outside the jurisdiction of the court. The fact that until an order is published or made known, the order does not became effective since it will be open to the authority to change his mind before releasing the order, is not a ground to hold that the communication of the order also forms part of the cause of action to the aggrieved person. The fact that a person who was dismissed from service while he was in service outside the State would have to 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 lost his employment. Similarly, when an appeal is filed by him to an appellate authority who is outside the jurisdiction of this High Court and that appeal is dismissed by the appellate authority, the merger in the decision of the Appellate Authority takes place when the appeal is dismissed and not when the appellant receives the order. 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 right of action on the already accrued cause of action and enables him to meet a plea of laches 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 Art 226 of the Constitution. When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant time and not in his native place to which he might have retired on his dismissal.
22. In the cases before us, consequences of the order of the original authority were suffered by the respective petitioners outside the State. One was dismissed and the other was reduced in rank. Thereafter they filed appeals before the appellate authority whose offices are in Delhi. One of the petitioners had come back to his native place in Trivandrum on his losing the job and from there, he received the copy of the order dismissing his appeal. In the other, after suffering reduction in rank from outside the State, the petitioner had obtained a transfer to the State within the jurisdiction of this court He had also suffered the punishment while he was outside the territory of this High Court. Merely because he was working in Kerala at the time when he received the copy of the appellate order dismissing his appeal cannot be said to be part of the cause of action to challenge the appellate order. In both these cases therefore we have no hesitation in holding that no part of the cause of action arose within the jurisdiction of this High Court. The objection raised in that behalf by the respondents is well founded.”
13. The aforesaid paragraphs of the judgment shows that the Full Bench has laid down the principle that receipt of communication by itself does not constitute a fact in the bundle of facts constituting cause of action and that at best, receipt of the order or communication only gives the party right of action based on the cause of action, which already arose out of the action complained of. On that basis, the Full Bench took the view that when the action complained of takes place outside the territorial jurisdiction of the High Court and an appeal therefrom is also dismissed by an authority located outside the jurisdiction of the High Court, cause of action wholly arises outside jurisdiction of the High Court and Article 226(2) of the Constitution of India cannot be invoked to sustain a writ petition on the basis that an integral part of the cause of action has arisen within the jurisdiction of this Court.
14. The Full Bench has also held that the fact that until it is published or made known, an order does not become effective is not a ground to hold that the communication of the order to the aggrieved person forms part of the cause of action. It was also found that the fact that a person who was dismissed from service while he was in service outside the State, would have to suffer the consequence of the dismissal when he is in his native place is not a fact which constitutes the bundle of facts giving rise to a cause of action in his favour. Yet another principle laid down by the Full Bench is that when an appeal against an order of dismissal is filed before an appellate authority situated outside the jurisdiction of this Court and that appeal is dismissed, the order of the disciplinary authority merges in the order of the appellate authority and that cause of action to challenge the order arises on the issue of the appellate order and not where the order is received by the addressee.
15. These principles laid down in Nakul Deo Singh (supra) show that the Full Bench has approved the principles laid down by the Division bench in Thomaskutty (supra) and has disapproved the principles adopted in Kunhabdulla (supra). Applying these principles, two original petitions referred to the Full Bench for consideration were also dismissed holding that no integral part of the cause of action arose within the jurisdiction of this Court on the service of orders in Kerala, dismissing the appeals filed before the appellate authorities situated outside the jurisdiction of this Court against the orders of the disciplinary authority which also were passed outside the jurisdiction of this Court. This judgment of the Full Bench was approved by the Apex Court in Mosaraf Hossain Khan (supra).
16. We find that in its various subsequent judgments also, the Supreme Court laid down principles which support the correctness of the Full Bench judgment in Nakul Deo Singh. Oil & Natural Gas Commission v. Utpal Kumar Basu [(1994) 4 SCC 711] was a case where a tender was invited from Delhi, in response to which, a company based in Calcutta submitted its tender. Challenging rejection of the tender, which was communicated at Calcutta, a writ petition was filed at the Calcutta High Court. Dealing with the maintainability of the writ petition, the Supreme Court held thus in paragraph 8 of the judgment:
“8. From the facts pleaded in the writ petition, it is clear that NICCO invoked the jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction. According to NICCO, it became aware of the contract proposed to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta. In response thereto, it submitted its bid or tender from its Calcutta office and revised the rates subsequently. When it learnt that it was considered ineligible it sent representations, including fax messages, to EIL, ONGC, etc., at New Delhi, demanding justice. As stated earlier, the Steering Committee finally rejected the offer of NICCO and awarded the contract to CIMMCO at New Delhi on 27-1-1993. Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the Calcutta High Court because it became aware of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi; that those would be scrutinised at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. Of course, the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax message of 15-1-1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27-1-1993. We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court.”
17. Following the principles laid down in Oil & Natural Gas Commission, the Supreme Court considered this question in its judgment in Union of India v. Adani Exports Ltd. [2002 (1) SCC 567]. That was a case where the respondents filed a special civil application before the High Court of Gujarat claiming the benefit of the Passbook scheme found in the Import Export Policy introduced in 1995. The passbook in question was issued by an authority stationed in Chennai and the entries in the passbook were also to be made by the authorities at Chennai. The export made by the respondents and the import of inputs also were to be made through Chennai. The objection regarding the territorial jurisdiction was rejected by the Gujarat High Court and in the appeal, the Apex Court considered the issue and held thus in paragraph 17:
“17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the court to decide a dispute which has, at least in part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court’s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. If we apply this principle then we see that none of the facts pleaded in para 16 of the petition, in our opinion, falls into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which could confer territorial jurisdiction on the courts at Ahmedabad.”
18. The issue of territorial jurisdiction again came up for consideration before the Apex Court in National Textiles Corp. Ltd. v. Haribox Swalram [(2004) 9 SCC 786]. In that case, upholding the objection that the Calcutta High Court did not have territorial jurisdiction in the matter and allowing the appeal, the Apex Court held thus in paragraphs 12 and 12.1.
“12. In the present case, the textile mills are situate in Bombay and the supply of cloth was to be made by them ex-factory at Bombay. According to the writ petitioners, the money was paid to the mills at Bombay. The learned Single Judge after a detailed discussion of the matter held that the Calcutta High Court had no jurisdiction to entertain the writ petition. The Division Bench has reversed this finding on the ground that concluded contract had come into existence which could be cancelled only after giving an opportunity of hearing and consequently, the question of revocation of the contract at its Calcutta address would constitute a cause of action. In our opinion, the view taken by the Division Bench is wholly erroneous in law “ “12.1. As discussed earlier, the mere fact that the writ petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta is not an integral part of the cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained. In view of the above finding, the writ petition is liable to be dismissed. However, in order to avoid any further harassment to the parties and to put an end to the litigation, we would examine the matter on merits as well.”
19. Kusum Ingots & Alloys Ltd. (supra) is another case where the issue of territorial jurisdiction was discussed by the Apex Court while answering the question whether receipt of notice is an integral part of the cause of action. This was a case where the appellant having its registered office at Mumbai had obtained a loan from the Bhopal branch of State Bank of India. When notice under the provisions of the SARFAESI Act was issued, questioning the vires of the Act, writ petition was filed before the Delhi High Court, which was dismissed on the ground of lack of territorial jurisdiction. The contention raised by the appellant was that as the constitutionality of the parliamentary Act was in question, the High Court at Delhi had the requisite jurisdiction to entertain the writ petition. This contention was considered in the light of Article 226 (2) of the Constitution of India, section 20 (c) of the Code of Civil Procedure and the judgments of the Apex Court itself. Thereafter, the court held that the facts pleaded in the writ petition must have a nexus, on the basis whereof, the prayer can be granted and when those facts have no nexus, it cannot be said to be given rise to a cause of action which would confer jurisdiction on the court. It was also held that passing of a legislation by itself does not confer any such right to file a writ petition. For the purpose of this judgment, we feel paragraph 27 of the judgment is relevant and therefore, is extracted for reference:
“27. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority.”
20. Yet another principle that is laid down in paragraph 30 of the judgment is one of forum conveniens.
According to the Apex Court, even if a small part of the 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 and that in appropriate cases, the court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
21. Ambika Industries v. Commissioner of Central Excise [(2007) 6 SCC 769] is another case of relevance. In this case, the Apex Court has followed its earlier judgment in Kusum Ingots & Alloys Ltd. (supra). In Ambika Industries (supra), the appellant was carrying on business at Lucknow and was also an assessee under the Central Excise Act at that place. A dispute under the Central Excise Act ultimately came up before the Central Excise and Service Tax Appellate Tribunal, New Delhi. Against the order of the Tribunal, appeal under the Act was filed before the Delhi High Court. A Division Bench of the Delhi High Court opined that it did not have territorial jurisdiction in the matter. In the appeal, that was filed before the Apex Court, it was held thus in paragraphs 29, 38, 40 and 41;
“29. The decisions operating in the field, which have been taken note of in Kusum Ingots & Alloys Ltd. would clearly go to show how the situs doctrine had been given a go-by by making constitutional amendments. At one point of time writ petitions against the Union of India were being filed only before the Punjab and Haryana High Court as the said Court exercised territorial jurisdiction over Delhi, which was the seat of the Central Government. Experiencing difficulties, Clause (1-A) of Article 226 was introduced. The Constitution again underwent a change by way of insertion of Clause 2 of Article 226. . . . . . . . . . . .
38. We have noticed hereinbefore that if the decision of the High Court in the aforementioned question is taken to its logical conclusion, the same would lead to a great anomaly. It would also give rise to the problem of forum shopping. We may notice some examples to show that the determination of the appellate forum based upon the situs of the tribunal would lead to an anomalous result. For example, an assessee affected by an assessment order in Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it which may be contrary to judgments of the High Court of Bombay. This cannot be allowed. (See Suresh Desai and Associates v. CIT, ITR at pp. 915-17 and CCE v. Technological Institute of Textile.)
40. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action, as what is necessary to be proved, before the petitioner can obtain a decree, is material facts. The expression material facts is also known as integral facts.
41. Keeping in view the expression “cause of action” used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction thereof accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter though the doctrine of forum conveniens may also have to be considered.”
22. The factual dispute that led to the judgment in Alchemist Ltd. v. State bank of Sikkim [(2007) 11 SCC 335] was that the appellant having its registered and corporate office at Chandigarh, responded to an advertisement issued by the State of Sikkim in the Economic Times newspaper, inviting offers for strategic partnership with transfer of management in the State Bank of Sikkim, having its head office at Gangtok. The appellant was one of the entities which were shortlisted. Thereafter, negotiations took place between the appellant and the bank. Subsequently, appellant had deposited Rs.4.5 crores with the State Bank of India. Finally, they were informed that their proposal was accepted in principle subject to consideration and approval of the Government of Sikkim. Still later, they received a communication at Chandigarh, by which, the bank sought to withdraw their communication conveying acceptance of their proposal in principle.
23. In the above circumstances, the appellant filed a writ petition before the High Court of Punjab & Haryana challenging the withdrawal of the proposal. That writ petition was dismissed on the ground that the High Court of Punjab & Haryana did not have territorial jurisdiction to entertain the writ petition. In the appeal filed, the Apex Court followed its earlier judgments and upheld the order of the High Court, holding thus in paragraphs 37, 38:
“37. From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the appellant- petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a “part of cause of action”, nothing less than that.
38. In the present case, the facts which have been pleaded by the appellant Company, in our judgment, cannot be said to be 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. The High Court, in our opinion, therefore, was not wrong in dismissing the petition.”
24. The question whether an order of termination can be challenged at a place where the head office of the company is located, was considered by the Apex Court in Eastern Coalfields Ltd. v. Kalyan Banerjee [(2008) 3 SCC 456]. In that case, the company was having its head office in West Bengal and the employee therein was terminated by his appointing authority who had his office in Jharkhand. The writ petition was filed before the Calcutta High Court which held that it had jurisdiction to entertain the writ petition. In the appeal filed, the Apex Court held that only that court within which the entire cause of action had arisen will have jurisdiction and that no part of the cause of action arose within the jurisdiction of the Calcutta High Court. On that basis, the appeal was allowed.
25. We should also make reference to some of the judgments of this Court where Nakul Deo Singh (supra) was followed. Prakash v. Food Corporation of India [2007 (4) KLT 895] was a case where disciplinary action was initiated while the employee was working in the Food Corporation's establishment in Bihar. Later, he was transferred to Kerala. While working in Kerala, he was served with a memo of charges pursuant to which, inquiry was conducted. The order of punishment was communicated to the employee, who, by that time, was transferred and was posted at Pune. An appeal was preferred against that order and its rejection was communicated to the petitioner while he was working as Deputy Manager (General), Food Corporation of India, Regional Office, Trivandrum. The question was whether this Court had territorial jurisdiction to entertain the writ petition filed by him. The Division Bench held that the cause of action arose entirely outside the jurisdiction of this Court and not even a part of the cause of action arose within its territorial jurisdiction.
26. Yet another judgment where Nakul Deo Singh (supra) was followed is Anand Anoop v. Union of India [2004 (3) KLT 171]. In that case, the appellant was a candidate who appeared for pre-medical entrance examination conducted by the third respondent institute situated in Maharashtra. Though he was declared to have passed in the examination, his claim for inclusion in the category 'Ward of defence personnel' did not yield any response from respondents 1 and 2. When he was informed that respondents were proposing to finalise a select list for admission which, according to him, was against the terms of the prospectus, the writ petition was filed. On the ground of absence of territorial jurisdiction, learned single Judge dismissed the writ petition and the Division Bench upheld the judgment, opining that in the light of the principles laid down in the Full Bench judgment in Nakul Deo Singh, the writ petition was not maintainable as no part of the cause of action arose within the territorial jurisdiction of this Court.
27. In fact, the same view has been taken by the Allahabad High Court in Daya Shanker Bhardwaj v. Chief of the Air Staff, New Delhi [AIR 1988 All 36] and Brij Bhal Singh Gautam v. Union of India [AIR 1998 All 132], and the Calcutta High Court in Bijoy Bouri v. Coal India Ltd. [2013 (139) FLR 20].
28. Thus, law is settled that in view of the provisions contained in Article 226(2) of the Constitution of India, a writ petition can be maintained in a High Court within the territorial jurisdiction of which an integral part of the cause of action has arisen. Though the expression “cause of action” is not defined either in the Constitution or in the Code of Civil Procedure, it has to be understood in the light of section 20(c) of the CPC and it means a bundle of facts which are required to be proved for a petitioner or a plaintiff to seek relief in a court of law. It is also the settled principle of law that in a service dispute, issue of an order of termination gives rise to cause of action and service of that communication, though is necessary to give effect to the order, does not amount to a part of the cause of action much less an integral part of the cause of action. In other words, the issue of the order gives rise to the cause of action and the service of the order gives rise to a right of action.
29. Having understood the principles laid down in Nakul Deo Singh as above, the further question is whether there is any distinction between the service of the order of dismissal passed by the disciplinary authority and the order of the appellate authority rejecting an appeal filed against the order of dismissal. We have already seen from the Full Bench judgment that when an appeal is filed against an order of dismissal and the appellate authority passed an order thereon, the order of the disciplinary authority would merge into the appellate authority's order. If the principles governing cause of action with respect to the order issued by the disciplinary authority are applied in the context of an order issued by the appellate authority, the conclusion is irresistible that the cause of action arises on the issue of the appellate order and the service of the appellate authority's order does not become any part of the cause of action except that it gives right of action to the aggrieved. If service of the appellate order is not an integral part of the cause of action, the service of the order of the disciplinary authority also will not give rise to any part of the cause of action. This will be so even in a case where the situation is in the reverse and the fact that only on service on the addressee, such orders become effective does not alter the situation in any manner, except that it gives right of action to the aggrieved.
30. In this context, we should also make reference to paragraph 27 of the judgment of the Apex Court in Kusum Ingots & Alloys Ltd., where, the Apex Court has held that challenge can be maintained against an order passed by the original authority and the appellate authority where the seats of the original authority and appellate authority are situated and the Apex Court did not mention that such challenge is possible at the place where orders are served. Therefore, irrespective of whether it is the disciplinary authority's order or appellate authority's order, service of order does not give rise to any part of the cause of action to an aggrieved person.
31. At the risk of repetition, we may again state that in Selvin Abraham, while the delinquent was working as Assistant Manager in the Bank at Coimbatore, disciplinary action was initiated against him at Coimbatore. On conclusion of the proceedings, the order issued by the disciplinary authority removing him from service was served on him at his native place in Kerala. This order was confirmed by the appellate and review authorities, though the place of service of these orders is not discernible from the judgement. The Division Bench finally concluded in paragraph 19 of the judgement that in State of Punjab v. Amarsingh Harika [AIR 1966 SC 1313], the Apex Court has held that an order of dismissal becomes effective only on it being communicated to the concerned employee, and that in view of the principles laid down in Kusum Ingots & Alloys Ltd. v. Union of India [2004(6)SCC 254);
“an order of dismissal when it becomes effective definitely forms an integral part of the cause of action. Service of an order of dismissal is not a mere service of a notice, it definitely gives rise to a cause of action and such service of notice forms an integral part of the cause of action. If it is to be held that it does not form an integral part of cause of action, the factum of service of such order of dismissal does not require to be proved for giving effect to the order of dismissal".
32. Reading of this judgement would show that after noticing the respective contentions and precedents, including the judgement in Nakul Deo Singh, the Division Bench found that the question to be considered was whether;
"while serving the order of dismissal on the appellant at Kottayam in the State of Kerala, whether it forms part of a cause of action enabling the appellant to file a Writ Petition before this Court."
33. Thereafter, the Division Bench considered whether, Kunhabdulla's case was overruled by the Full Bench in Nakul Deo Singh's case. In this context, after referring to the facts in Kunhabulla's case and Thomaskutty's case and also the Full Bench judgement, the Division Bench concluded thus;
“15. The Full Bench proceeds further and draws a distinction between cause of action and right of action. It is held that the decision in Swatika properties case (supra) and subsequent judgments established that receipt of communication by itself does not constitute as facts in the bundle of facts constituting cause of action and at best, receipt of the order of communication only gives a party a right of action based on the cause of action arising out of the action complained of. It could be seen that in the cases before the Full Bench the factual circumstances involved was dismissal of the appeal and the communication of the appellate order or rejection of the appeal and whether it constitutes a cause of action. It is in that view that the Full Bench relies upon S.S.Rathore (supra) to indicate that when there is an appeal against the original order even in a service dispute, there is a merger of the original order in the appellate order and the decision rendered by the appellate authority whether it be of dismissal, reduction, allowance or modification of the order of the original authority, a cause of action accrues to the aggrieved person to challenge the appellate order since the order of the original authority merges in the order of appellate authority. It is further observed that, “What furnishes the cause of action is the rejection of the appeal by the appellate authority. Communication of that order though the order may become effective only on such communication to the aggrieved person only furnishes the aggrieved person with a right of action. Receipt of the communication is not a fact in the bundle of facts constituting the cause of action”. Apparently by making the above observation, the Full Bench was considering the question as to whether a cause of action arises when the appeal is dismissed or when it is communicated to the concerned person.
16. However the Full Bench observes further that, “The fact that a person who was dismissed from service while he was in service outside the State would have to 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 lost his employment”. “When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant time and not in his native place to which he might have retired on his dismissal.” This expression of view by the Full Bench without overruling the judgment in Kunhabdulla's case (supra) gives an indication that the Full Bench was considering the impact of service of notice in the appeal and not the factual circumstances relating to service of the original order of dismissal. In fact the observation “That right accrued to him earlier when he was dismissed from service outside the State and he lost his employment” indicates approval of Kunhabdulla's case (supra) whereas the observation “When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant time and not in his native place to which he might have retired on his dismissal” gives an indication of implied overruling of Kunhabdulla's case (supra).”
34. Reading of paragraph 15 of Selvin Abraham shows that the Division Bench has proceeded on the footing that in the cases before the Full Bench, orders rejecting the appeals were communicated in the state of Kerala and that the question considered by the Full Bench was whether such communication of appellate order would constitute an integral part of the cause of action. The Bench thereafter proceeded to hold that as per the Full Bench judgement even in a service dispute, the original order would merge in the appellate order and that on such merger, a cause of action accrues to the aggrieved person to challenge the appellate order. Thereafter, the Division Bench concluded that the Full Bench has laid down that rejection of the appeal furnishes the cause of action and that though the order becomes effective only on communication to the aggrieved party, such communication would only give the party a right of action and not cause of action. According to the Division Bench, the question considered by the Full Bench was whether a cause of action arises when the appeal is dismissed or when the order is communicated to the concerned person.
35. In paragraph 16 of its judgement, the Division Bench makes reference to the principle that consequence of the dismissal is suffered within the jurisdiction of this Court, is not a fact which constitutes the bundle of facts giving rise to a cause of action. According to the Division Bench, this finding of the Full Bench, rendered without overruling Kunhabdulla's case, gives an indication that the Full Bench was considering the impact of service of notice in the appeal and not the factual circumstance relating to original order of dismissal. Then the Division Bench made the following observation regarding the Full Bench judgment;
“16. [T]his expression of view by the Full Bench without overruling the judgment in Kunhabdulla's case (supra) gives an indication that the Full Bench was considering the impact of service of notice in the appeal and not the factual circumstances relating to service of the original order of dismissal. In fact the observation “That right accrued to him earlier when he was dismissed from service outside the State and he lost his employment” indicates approval of Kunhabdulla's case (supra) whereas the observation “When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant time and not in his native place to which he might have retired on his dismissal” gives an indication of implied overruling of Kunhabdulla's case (supra).”
36. The Division Bench referred to the judgments in Amarsingh Harika and Kusum ingots & Alloys Ltd. and finally held that an order of dismissal when it becomes effective definitely forms an integral part of the cause of action. It is on that basis, the writ petition was held to be maintainable.
37. First of all, the Division Bench has distinguished Nakul Deo Singh primarily on the basis that the said case dealt with the question whether service of an order in an appeal would be an integral part of the cause of action. In so far as this reasoning adopted by the Division Bench in Selvin Abraham is concerned, according to us, in determining the question of cause of action, whether the order served is that of the original authority or that of the appellate authority is immaterial.
38. The Full Bench judgment shows that in service disputes where the appellate authority has passed an order in the appeal filed against the disciplinary authority's order, the order would merge in the appellate order. Therefore, the order of the disciplinary authority loses its separate existence and what survives for challenge is the appellate order and it is the service of the appellate order that gives effect to the proceedings initiated and concluded by the disciplinary authority. We have referred to paragraph 27 of Kusum Ingots & Alloys Ltd. Where, the Supreme Court has specifically held that when an appellate authority has issued an order, challenge is possible against the appellate authority's order at the place where the order is issued and this judgment did not say that challenge is possible at the place of its service.
39. That apart, in Nakul Deo Singh, the Full Bench was considering the conflict between the principles laid down in Kunhabdulla and Thomaskutty. In Kunhabdulla, what was under challenge was an order of removal passed by an authority outside the territorial jurisdiction of this Court. The learned single Judge held that this Court had jurisdiction on the basis that though the order is effective on the authority concerned on its issue, in so far as the Government servant is concerned, it becomes effective only when he is appraised of it and that this Court can entertain a challenge against an order which was received by the petitioner through post while he was residing within the territorial jurisdiction of this Court. The Division Bench affirmed the judgment holding that the order of removal becomes effective only on acceptance of the order communicated by registered post and since the order was received by the party while he was within the territorial jurisdiction of this Court, it must be held that part of cause of action to challenge the order of removal arose in the State of Kerala where the order became effective.
40. According to Their Lordships, when an order is made by an authority in one State but it becomes effective on service in another State, the High Court of the latter State will also have jurisdiction as part of the cause of action arose therein. The Full Bench was concerned with the conflict in the principles laid down in the above judgment and the judgment in Thomaskutty where a contra view was taken. Therefore, although the two original petitions in which the correctness of the above judgments was doubted and were referred for the consideration of the Full Bench, arose after service of the appellate order, the Full Bench was concerned with the correctness of the judgments in Kunhabdulla and Thomaskutty and in the former, what was challenged was the order passed by the disciplinary authority. It is therefore evident that the reasoning of the Division Bench that the Full Bench was not concerned with cases arising out of service of orders of the disciplinary authority but that of the appellate authority is factually erroneous. Therefore, the distinction drawn by the Division Bench does not have any sound basis.
41. Paragraph 16 of the judgment shows that in Selvin Abraham, the Division Bench was uncertain as to whether the Full Bench had approved or disapproved the judgment in Kunhabdulla. It is true that in Nakul Deo Singh, the Full Bench has not, in specific terms, stated that Kunhabdulla is overruled. But a reading of the judgment shows that the Full Bench did not approve the principles laid down therein and on the other hand, approved the principles laid down in Thomaskutty. This, therefore, leaves no room for doubt that the judgment in Kunhabdulla is at least impliedly overruled by the Full Bench in Nakul Deo Singh.
42. The Division Bench further relies on the judgment of the Apex Court in Amarsingh Harika to hold that only on service of the order, it becomes effective and therefore, an integral part of the cause of action arose at the place where the order is served, to entertain a challenge against the order. In this context, it is relevant to state that ratio of any judgment must be understood in the background of the facts of that case and that a case is only an authority for what it actually decides and not what logically follows vide Ambica Quarry Works v. State of Gujrat [(1987) 1 SCC 233]. In Dr.Subramanian Swamy v. State of Tamil Nadu [2014 (1) SCALE 79], the above legal position has been reiterated. Paragraph 31 of the judgment reads thus:
“31. It is the settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. “The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact-situation of the decision on which reliance is placed.”
43. Amarsingh Harika was a case where the respondent was an Assistant Director of Civil Supplies in the Patiala and East Punjab States Union. He was dismissed from service by order dated 3.6.1949. This order was communicated to him on 2/3.1.1953. He filed a suit against the State of Punjab challenging the order of dismissal and the suit was instituted at the Court of Sub Judge II Class, Patiala on 20.4.1954. One of the contentions raised by the appellant was that the suit filed was not maintainable. The trial court answered the issue against the plaintiff and the suit was dismissed. The High Court held the suit maintainable and it was this judgment which was under challenge before the Apex Court.
44. The contention raised therein was that though the respondent came to know about the order of dismissal for the first time on 28.5.1951, the said order must be deemed to have taken effect from 3.6.1949, when it was actually passed. This contention was rejected by the Apex Court holding thus:
“11. The first question which has been raised before us by Mr. Bishan Narain is that though the respondent came to know about the order of his dismissal for the first time on the 28th May 1951, the said order must 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 Narains' argument. It is plain that the mere passing of an order of dismissal would not be effective unless 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 fell that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated 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 or 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 may be communicated to the officer concerned several days thereafter. It is true that in the present case, the respondent had 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 concerned 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 only 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, therefore, the High Court was plainly right in holding that the order of dismissal passed against the respondent on the 3rd June 1949 could not be said to have taken effect until the respondent came to know about it on the 28th May 1951.”
45. Reading of the above paragraph shows that the issue that was raised and considered in Amarsingh Harika was whether the suit filed by him on 20.4.1954 challenging an order of dismissal issued on 3.6.1949 was maintainable. The Supreme Court held that the order of dismissal is effective only on service thereof and this finding was not rendered answering a plea of absence of territorial jurisdiction but while answering the plea that the order is deemed to have taken effect from the date when the order was passed by the authority concerned. This judgment shows that the Supreme Court in that case was not at all concerned with the maintainability of the suit on the ground of territorial jurisdiction. Therefore, in our view, Amarsingh Harika is not a precedent on the issue of territorial jurisdiction and could not have been of any relevance on that issue.
46. In paragraph 9 of Selvin Abraham, it is seen that the Division Bench rejected the contention that Nakul Deo Singh was approved by the Apex Court in Mosaraf Hossain Khan (supra) This is on the reasoning that the Supreme Court in this case was considering the question regarding what constitutes cause of action in the light of section 138 of the Negotiable Instruments Act, 1881 and was not concerned with a similar factual situation. The judgment in Mosaraf Hossain Khan (supra) shows that complaints were filed against it under section 138 of the Negotiable Instruments Act in the court of Chief Judicial Magistrate, Birbhum at Suri. On receipt of summons in the case, a writ petition was filed before this Court which was registered as W.P(C).2666/05. The writ petition was admitted and an interim stay of further proceedings pursuant to the complaints, including the arrest of the petitioners was passed.
47. Paragraph 14 of the judgment shows that according to the Apex Court, the preliminary question that arose for consideration was whether the Kerala High Court had jurisdiction in the matter. Answering this contention, in the light of the provisions contained in Article 226(2) of the Constitution of India and the principles laid down in various judgments of the Apex Court, including some of the judgments referred to by us, and also the judgment in Nakul Deo Singh, the Apex Court held that the Kerala High Court did not have jurisdiction to entertain the writ petition as no part of cause of action arose within its jurisdiction. Therefore, the Apex Court in this judgment was not concerned with cause of action in the context of section 138 of the NI Act but whether the High Court had territorial jurisdiction to entertain the writ petition filed under Article 226 of the Constitution of India, challenging the criminal complaints filed at the court of Chief Judicial Magistrate, Birbhum at Suri. Thus, the Division Bench has distinguished the Apex Court judgment in Mosaraf Hossain Khan (supra) on a wrong factual basis.
48. The respondents made a final attempt to salvage Selvin Abraham by referring to the Apex Court judgment in Nawal Kishore Sharma v. Union of India [2014 KHC 4507]. According to the learned counsel, the ratio of this judgment should give a quietus to the issue in their favour. To understand this judgment, it is necessary to refer to paragraphs 20, 21 and 22 and therefore, these paragraphs are extracted below for reference.
“20. 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 muscles disease). As a result, the Shipping Department of the Government of India issued an order on 12/04/2011 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, appellant was suffering from serious heard muscles disease (Dilated Cardiomyopathy) and breathing problem which forced him to stay in 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.
21. Apart from that, from the counter-affidavit of the respondents and the documents annexed therewith, it reveals that after the writ petition was filed in the Patna High Court, the same was entertained and notices were issued. Pursuant to the said notice, the respondents appeared and participated in the proceedings in the High court. It further reveals that after hearing the counsel appearing for both the parties, the High Court passed an interim order on 18/09/2012 directing the authorities of Shipping corporation of India to pay at least a sum of Rs.2.75 lakhs, which shall be subject to the result of the writ petition. Pursuant to the interim order, the respondent Shipping Corporation of India remitted Rs.2,67,270/- (after deduction of income tax) to the bank account of the appellant. However, when the writ petition was taken up for hearing, the High Court took the view that no cause of action, not even a fraction of cause of action, has arisen within its territorial jurisdiction.
22. Considering the entire facts of the case narrated hereinbefore including the interim order passed by te High Court, in our considered opinion, the writ petition ought not to have been dismissed for want of territorial jurisdiction. As noticed above, at the time when the writ petition was heard for the purpose of grant of interim relief, the respondents instead of raising any objection with regard to territorial jurisdiction opposed the prayer on the ground that the writ petitioner- appellant was offered an amount of Rs.2.75 lakhs, but he refused to accept the same and challenged the order granting severance compensation by filing the writ petition. The impugned order, therefore, cannot be sustained in the peculiar facts and circumstances of this case.”
(emphasis supplied)
49. Reading of the above paragraphs in the judgment rendered by the Apex Court shows that this judgment was rendered in the peculiar facts noticed by the court in the aforesaid paragraphs and the Apex Court was not attempting to strike a note of departure from the law settled by it as is evident from the judgments to which we have referred to in the earlier paragraphs of this judgment.
50. In this context, we may also usefully refer to the Apex Court judgment in State Of Punjab V. Rafiq Masih [(2014) 8 SCC 883], where the Court was called upon to resolve the apparent difference of opinion expressed on the one hand in Shyam Babu Verma v. Union of India [(1994) 2 SCC 521] and Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18] and on the other hand, in Chandi Prasad Uniyal v. State of Uttarakhand [(2012) 8 SCC 417]. In Shyam Babu Verma's case (supra), relief was granted observing that "it shall only be just and proper not to recover any excess amount which has already been paid to them". In Sahib Ram's case (supra), it was observed that "Under the circumstances the amount paid till date may not be recovered from the appellant".
51. In its judgment, the Apex court held that these observations were made in "exercise of the extraordinary powers under Article 142 of the Constitution of India" which vests the power in the Apex Court to pass equitable orders in the ends of justice. Proceeding further, explaining the nature of the powers exercised by it under Article 142 of the Constitution of India and Article 136 thereof, the Apex Court held thus;
"The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a precedent".
On the aforesaid reasoning, concluding that Rafiq Masih was law declared under Article 136 of the Constitution of India and that there was no conflict to be resolved, the reference was answered.
52. Since Nawal Kishore Sharma (supra) was decided "in the peculiar facts and circumstances" of the case, in view of the principles laid down in Rafiq Masih (supra), we should accept the contention that relief was granted in Nawal Kishore Sharma, in exercise of the powers of the Apex Court under Article 142 of the Constitution of India.
53. Thus, the conclusion is irresistible, that the principles laid down in Selvin Abraham are contrary, not only to the Full Bench judgment in Nakul Deo Singh but also to the Apex Court judgments we have referred to. As a result, Selvin Abraham does not laid down good law and therefore, is overruled. The question referred to the Full Bench is answered as aforesaid.
54. Coming to the cases that are referred to the Full Bench, in W.A.743/14, by Ext.P2 notification issued by the appellant from Chennai where its head office is situated, applications were invited to various posts, including the post of Professor (Management). In response to the notification, the respondent, who is presently working as a Professor in the NSS College of Engineering, Palakkad applied and he was invited for an interview at Chennai. He appeared for the interview and was issued Ext.P4 communication from Chennai, whereby, he was offered the post and was asked to report at Chennai. He accepted the offer by Ext.P5 and requested for a posting at the Cochin campus of the appellant. By Ext.P7 e-mail, he was informed that his request was accepted and was requested to report at the head quarters of the appellant. However, by Ext.P6 e-mail, he was informed that the offer is kept in abeyance and was thereafter issued Ext.P1 communication from Chennai, informing that the offer of appointment was withdrawn. It was in these circumstances, he filed W.P(C).22184/13 with the following main prayers:
“(a) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to the issue of Ext.P-1 and quash the same;
(b) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to allow the petitioner to join duty as Professor (Management) as originally ordered in terms of Exhibit P4 read with Exhibit P7 with all consequential benefits emanating therefrom;”
55. In so far as W.P(C).8678/14 is concerned, since 30.3.2009, the petitioner herein was working as Branch Manager of Indian Bank at Microsate at Puducherry. He continued there till 29.4.2010 when he was transferred and posted to Perinthalmanna, where, he joined on 1.5.2010. He was later transferred to Kunnamkulam on 11.7.2011 and while working at Kunnamkulam, by Ext.P2 order, he was placed under suspension pending disciplinary action. He was thereafter issued with Ext.P3 memo of charges containing various misconducts, all relating to his tenure at Puducherry and the disciplinary authority was the Assistant General Manager, Zonal office, Puducherry, the 4th respondent. Preliminary enquiry was conducted at the Zonal office, Puducherry on 30.12.2011 and the petitioner participated in the enquiry.
56. Thereafter, enquiry was also conducted at the Zonal office, Puducherry in which also, the petitioner participated. Ext.P4 is the report of the enquiry that was submitted to the disciplinary authority. The disciplinary authority, thereafter, forwarded the enquiry report along with his letter dated 20.7.2012, which was served on the petitioner while he was at Palakkad. The petitioner submitted his objection against the findings of the enquiry officer. This was considered by the disciplinary authority, who, thereafter, issued Ext.P5 order dated 26.9.2012, removing the petitioner from service. This order was issued from Puducherry and was served on the petitioner while he was at Palakkad. He filed an appeal to the General manager, Indian Bank, Chennai which was rejected and this order was also communicated to the petitioner at Palakkad. He filed a review application to the first respondent, the Chairman and Managing Director of the Bank at Chennai. That was also rejected by Ext.P9 order which also was served on the petitioner at Palakkad. It was in these circumstances, the writ petition was filed with the following main prayers:
1) To issue Writ in the (nature of) certiorari to quash Ext.P3, Ext.P4, Ext.P5, Ext.P6 & Ext.P9 as legally unsustainable and violative of Article 14 & 16 of the Constitution of India.
2) To issue Writ in the nature of mandamus commanding the 4th respondent to reinstate the petitioner in service with retrospective effect from the date of dismissal and grant all other consequential benefits including arrears of pay, pay and allowance etc.
3) To issue writ in the nature of mandamus commanding the 4th respondent to treat the period of absence from the date of suspension to date of reinstatement as duty for all purposes and grant such other service benefits which were otherwise entitled to the petitioner untrammeled by the suspension and subsequent dismissal from service.
57. Having gone through the pleadings, we do not see any averment in the writ petitions where the petitioners have raised any plea as to how the Kerala High Court has territorial jurisdiction over the cause of action which led them to file the writ petitions. Instead, counsel wanted us to infer from the above pleading that an integral part the cause of action arose within the jurisdiction of this Court. However, if the facts which we have noticed above are evaluated in the light of the law laid down in Nakul Deo Singh and the Apex Court judgments, according to us, the only conclusion that is possible is that no part of the cause of action, much less any integral part of the cause of action, has arisen within the territorial jurisdiction of this Court justifying the entertainment of these writ petitions.
58. However, counsel for the petitioner in W.P(C). 8678/14 referred us to charge No.3 in Ext.P3 memorandum of charges and contended that part of the misconduct is alleged to have arisen within the State of Kerala. We are unable to agree with this contention of the learned counsel. The part of charge No.3 relied on by him only says that the petitioner therein made some repayments to the person whose money was appropriated by him from Kerala. Such repayment is not a material fact giving rise to any cause of action or part thereof for conferring jurisdiction on this Court.
In the result,
(1) The Division Bench judgment in Selvin Abraham v. Punjab & Sind Bank [2013 (3) KLT 481] is overruled.
(2) W.A.743/14 is allowed and the order of the learned single Judge is set aside.
(3) Writ petition Nos.22184/13 and 8678/14 are dismissed.
(4) It is clarified that this judgment shall not be to the prejudice of the writ petitioners in seeking their remedies before the appropriate court in accordance with law.
kkb.
(5) No costs.
Sd/-
ANTONY DOMINIC, Judge.
Sd/- K.RAMAKRISHNAN, Judge.
Sd/-
ANIL K.NARENDRAN, Judge.