PREM SHANKAR PANDEY v. THE ASSISTANT GENERAL MANAGER

Order

“ The learned counsel for the petitioner submits that the petitioner has retired from service with the respondents - Bank in the year 2015 and he is presently issued with a charge memo only because he was treated as hostile witness in the pending proceedings before the 3 CBI Court. It is a settled that act of turning hostile facto would not amount to misconduct. The charge memo issued without considering this aspect. On perusal of the records, including the petitioner’s testimony before the CBI Court, further proceedings pursuant to the impugned charge memo is stayed until the next date of hearing. There shall be emergent notice to the respondents.”

#3. Upon service of notice, the respondent - Bank filed an interlocutory application, seeking vacation of interim order granted by this Court on

13.02.2023, and also filed statement of objections. In its objections, the respondent - Bank raised a preliminary objection regarding the maintainability of

the writ petition before this Court, on the ground that, no part of the cause of action has arisen within the territorial jurisdiction of this Court. Hence, the parties were heard on the question of maintainability. 4

#4. The learned counsel for the respondents contended that the petitioner joined the service of the Bank on 23.11.1982 as a Clerk at the Agra Lohamandi Branch, Circle Office, Agra, and superannuated from service on 28.02.2015 from the Virandhavan Branch, Circle Office, Agra. The entire service of the petitioner was rendered in Agra, Uttar Pradesh, and therefore, the matter falls within the territorial jurisdiction of the High Court of Allahabad. This Court has no jurisdiction as no cause of action has arisen within the territorial jurisdiction of this Court.

#5. It is further contended that, when Sri Damodar Chandore, the then Senior Manager working at Mathura Main Branch from 21.07.2008

05.11.2011, there was a serious allegation of misappropriation of money; hence, the Bank registered FIR against Damodar Chandore, and the matter was entrusted to the CBI Anti-Corruption 5 Branch, Ghaziabad. After the investigation, the CBI submitted its report on 30.11.2020 against Damodar Chandore and nine others. When the CBI recorded the petitioner’s statement under Section 161 of the Cr.P.C., on 14-11-2017, he turned hostile. Therefore, a departmental enquiry was initiated against him. Since no part of the cause of action arose within the jurisdiction of this Court, the writ petition is liable to be dismissed. In support of his contentions, he relied upon the judgments of the Apex Court in the case of UNION OF INDIA vs. ADANI EXPORTS LTD. reported in AIR 2002 SC 126 and in the case of STATE OF RAJASTAN vs. M/S.SWAIKA PROPERTIES AND ANOTHER reported in 1985(3) SCC 217.

#6. Per contra, learned counsel for the petitioner contended that, when the petitioner was working as an Assistant at the Mathura Branch, Uttar Pradesh, 6 during the period from 06.08.2004 to 23.01.2011, allegations were made against one Sri Damodar Chandore, Senior Manager of the Bank, sanctioning Open Cash Credit facilities to selected parties in contravention of Bank guidelines. The petitioner was neither involved in the sanction of the said loans nor did he collude with the said officer or the parties. He had no duty or power to process or sanction loans to the said parties. After his retirement from service, the departmental enquiry was initiated against him solely on the basis of a letter written by the Chief Vigilance Officer, Canara Bank, Bangalore. The CBI, Ghaziabad, intimated the Central Vigilance Commission, Bangalore, that the petitioner had turned hostile before the CBI Court. Based on communication, the Central Vigilance Commission, Bangalore, directed the Disciplinary Authority to take necessary action against the petitioner. Pursuant to 7 this, a departmental enquiry was initiated, and articles of charges were issued. The action taken was also communicated by the Bank to the Central Vigilance Commission, Bangalore. Therefore, departmental enquiry was initiated on the basis of the letter issued by the Central Vigilance Officer, Bangalore, a part of the cause of action has arisen within the jurisdiction of this Court. Accordingly, the writ petition is maintainable before this Court. It is a settled position of law that even if a small part of the cause of action arises within the jurisdiction of the High Court, the Court will have jurisdiction to entertain the matter, by applying the doctrine of forum convenience, as held by the Apex Court in the case of KUSUM INGOTS & ALLOYS LTD. vs. UNION OF INDIA AND ANOTHER reported in 2004 (6) SCC 254, in the case of AMBICA INDUSTRIES vs. COMMISISONER OF CENTRAL EXCISE reported in 8 2007(6) SCC 769 and in the case of NAWAL KISHORE SHARMA vs. UNION OF INDIA AND OTHERS reported in 2014 (9) SCC 329.

#7. Heard learned counsel for the parties and perused the writ petition papers.

#8. The petitioner is a resident of Mathura City, Uttar Pradesh. He joined the respondent - Bank as a clerk on 23.11.1982, at the Agra Lohamandi Branch and superannuated from service on 28.02.2015, from the Vrindavan Branch, both under the Agra Circle Office. Throughout his service, he worked in Agra. When he was at the Mathura Main branch (2004- 2011), allegations arose against Senior Manager Damodar Chandore regarding misappropriation of funds and unauthorized sanctioning of open cash credit. The Bank initiated a criminal case, and the police registered an FIR and entrusted the matter to CBI. The CBI investigated and filed a charge sheet 9 against Damodar Chandore and others under Sections 120B, 409, 420, 468 and 471 of the IPC and Sections 7, 12, 13(2) r/w. 13(1) of the Prevention of Corruption Act.

#9. The petitioner was a key witness in the case, and his statement was recorded under Section 161 of the Cr.PC. However, he turned hostile during the investigation. The CBI informed the Chief Vigilance Officer of Canara Bank, Bangalore (the bank's head office), about the petitioner's testimony, by communication dated 05.09.2022 vide Annexue R7. Thereafter, the Assistant General Manager of Canara Bank, Agra, issued a show-cause notice to the petitioner. After the petitioner's reply, the Assistant General Manager of Agra, who is a disciplinary authority, initiated a departmental inquiry and issued articles of charges vide Annexue-F. By going through the records and pleadings, it is very clear that, no part 10 of the cause of action arose within the territorial jurisdiction of this High Court, the writ petition is not maintainable.

#10. Article 226(2) of the Constitution of India empowers High Courts to exercise jurisdiction in relation to territories where the cause of action arises, wholly or in part. The Apex Court has considered this provision in several judgments.

#11. In the case of M/S.SWAIKA PROPERTIES (supra), the Apex Court considered Article 226(2) and laid down the certain principles. The relevant paragraphs are extracted below: “7. Upon these facts, we are satisfied that the cause of action neither wholly nor in part arose within the territorial limits of the Calcutta High Court and therefore the learned Single Judge had no jurisdiction to issue a rule nisi on the petition filed by the respondents under Article 11 226 of the Constitution or to make the ad interim ex parte prohibitory order restraining the appellants from taking any steps to take possession of the land acquired. Under sub- section (5) of Section 52 of the Act the appellants were entitled require respondents to surrender or deliver possession of the lands acquired forthwith and upon their failure to do so, take immediate steps to secure such possession under sub-section (6) thereof.

#8. The expression “cause of action” is tersely defined in Mulla's Code of Civil Procedure: “The ‘cause of action’ means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court.” In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The mere service of notice under Section 52(2) of the Act on the respondents at their registered office at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a 12 cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan i.e. within territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. The notification dated February 8, 1984 issued by the State Government under Section 52(1) of the Act became effective the moment it was published in the Official Gazette as thereupon the notified land became vested in the State Government from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer, Town Planning Department, Jaipur under Section 52(2) for the grant of an appropriate writ, direction or order under Article 226 of the Constitution for quashing the notification issued by the State Government 13 under Section 52(1) of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under Section 52(1) of the Act by a petition under Article 226 of the Constitution, the remedy of the respondents for the grant of such relief had to be sought by filing such a petition before the Rajasthan High Court, Jaipur Bench, where the cause of action wholly or in part arose.

#9. It is to be deeply regretted that despite a series of decisions of this Court deprecating the practice prevalent in the High Court of passing such interlocutory orders for the mere asking, the learned Single Judge should have passed the impugned ad interim ex parte prohibitory order the effect of which, as the learned Attorney General rightly complains, was virtually to bring to a standstill a development scheme of the Urban Improvement Trust, Jaipur viz. Civil Lines Extension Scheme, irrespective of the fact whether or not the High Court Court had any territorial jurisdiction to entertain a petition under Article 226 of the Constitution. Such arbitrary exercise of power 14 by the High Court at the public expense reacts against the development and prosperity of the country and is clearly detrimental to the national interest.

#10. Quite recently, Chinnappa Reddy, J. speaking for the Court in Assistant Collector of Central Excise, W.B. v. Dunlop India Limited [(1985) 1 SCC 260 : 1985 SCC (Tax) 75] administered strong admonition deprecating the practice of the High Court of granting ad interim ex parte orders which practically have the effect of the grant of the main relief in the petition under Article 226 of the Constitution irrespective of the fact whether the High Court had any territorial jurisdiction to entertain such a petition or whether the petition under Article 226 was intended and meant to circumvent the alternative remedy provided by law or filed solely for the purpose of obtaining interim orders and thereafter delaying and protracting the proceedings by one device or the other particularly in matters relating to public revenue implementation various measures and schemes undertaken by the Government or the local authorities for general public benefit. Although the powers of the High 15 Court under Article 226 of the Constitution are far and wide and the Judges must ever be vigilant to protect the citizen against arbitrary executive action, nonetheless, the Judges have a constructive role and therefore there is always the need to use such extensive powers with due circumspection. There has to be in the larger public interest an element of self- ordained restraint. We hope and trust that the High Court will determine the extent of its territorial jurisdiction before making such interlocutory orders.”

#12. Similarly, the Apex Court in the case of ALIGARH MUSLIM UNIVERSITY AND ANOTHER vs. VINAY ENGINEERING ENTERPRISES (P) LIMITED AND ANOTHER reported in 1994 (4) SCC 710 has considered the jurisdiction issue. The relevant portion is extracted below: “2. We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely 16 no jurisdiction. The contracts in question were executed at Aligarh, the construction work was to be carried out at Aligarh, even the contracts provided that in the event of dispute the Aligarh Court alone will have jurisdiction. The arbitrator was from Aligarh and was to function there. Merely because the respondent was a Calcutta-based firm, the High Court of Calcutta seems to have exercised jurisdiction where it had none by adopting a queer line of reasoning. We are constrained to say that this is a case of abuse of jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable.

#13. In similar circumstances, in the case of OIL AND NATURAL GAS COMMISSION vs. UTPAL KUMAR BASU AND OTHERS reported in 1994 (4) SCC 711, the Apex Court held as follows: 17 “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 consideration albeit without embarking upon an enquiry as 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, question territorial 18 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 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.”

#14. Even in the case of KUSUM INGOTS AND ALLOYS LIMITED (supra), the Apex Court has held as follows: “6. Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not 19 proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily.

#7. Clause (2) of Article 226 of the Constitution of India reads thus: “226. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, for the exercise of such power, arises notwithstanding the seat of such Government or authority or the residence of such person is not within those territories.”

#8. Section 20(c) of the Code of Civil Procedure reads as under: “20. Other suits to be instituted where defendants reside or cause of action arises.— Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction— (a)-(b)*** (c) the cause of action, wholly or in part, arises.”

#9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would 20 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 the material facts. The expression material facts is also known as integral facts.

#10. Keeping in view the expressions used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter.

#11. In Chand Kour v. Partab Singh [(1887-88) 15 IA 156] it was held: (IA pp. 157-58) “[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 grounds set forth in the plaint as the cause of action, or, in 21 other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.”

#12. This Court in Oil & Natural Gas Commission v. Utpal Kumar Basu [(1994) 4 SCC 711] held that the question as to whether the Court has a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial.

#13. This Court in Oil and Natural Gas Commission case [(1994) 4 SCC 711] held that all necessary facts must form an integral part of the cause of action. It was observed: (SCC p. 719, para 8) “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.”

#14. In State of Rajasthan v. Swaika Properties [(1985) 3 SCC 217] this Court opined that mere service of a notice would not give rise to any cause of action unless service of notice was an integral part of the cause of action. The said decision has also been noticed in Oil and Natural Gas Commission [(1994) 4 SCC 711] . This Court held: (SCC p. 223, para 8) 22 “The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action.”

#15. In Aligarh Muslim University v. Vinay Engg. Enterprises (P) Ltd. [(1994) 4 SCC 710] this Court lamented: (SCC p. 711, para 2) “2. We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction. The contracts in question were executed at Aligarh, the construction work was to be carried out at Aligarh, even the contracts provided that in the event of dispute the Aligarh court alone will have jurisdiction. The arbitrator was from Aligarh and was to function there. Merely because the respondent was a Calcutta-based firm, the High Court of Calcutta seems to have exercised jurisdiction where it had none by adopting a queer line of reasoning. We are constrained to say that this is a case of abuse of jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable.”

#16. In Union of India v. Adani Exports Ltd. [(2002) 1 SCC 567] it was held that in order to confer jurisdiction on a High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action 23 do constitute a cause so as to empower the Court to decide the dispute and the entire or a part of it arose within its jurisdiction.

#17. Recently, in National Textile Corpn. Ltd. v. Haribox Swalram [(2004) 9 SCC 786 : JT (2004) 4 SC 508] a Division Bench of this Court held: (SCC p. 797, para 12.1) “12.1. As discussed earlier, the mere fact that the writ petitioner carries on business at Calcutta 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.”

#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.

#19. Passing of a legislation by itself in our opinion does not confer any such right to file a writ petition unless a cause of action arises therefor. 24

#20. A distinction between a legislation and executive action should be borne in mind while determining the said question.

#21. A parliamentary legislation when it receives the assent of the President of India and is published the Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled, would not determine a constitutional question in a vacuum.

#22. The Court must have the requisite territorial jurisdiction. An order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory 25 of India subject of course to the applicability of the Act.

#23. A writ petition, however, questioning the constitutionality of a parliamentary Act shall not be maintainable in the High Court of Delhi only because the seat of the Union of India is in Delhi. (See Abdul Kafi Khan v. Union of India [AIR 1979 Cal 354] .)

#24. Learned counsel for the appellant in support of his argument would contend that the situs of framing law or rule would give jurisdiction to the Delhi High Court and in support of the said contention relied upon the decisions of this Court in Nasiruddin v. STAT