SHANTI DEVI ALIAS SHANTI MISHRA versus UNION OF INDIA & ORS. on 5 November 2020

[2020] 12 S.C.R. 279

SHANTI DEVI ALIAS SHANTI MISHRA

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v.

UNION OF INDIA & ORS.

(Civil Appeal No. 3630 of 2020)

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NOVEMBER 05, 2020

[ASHOK BHUSHAN, R. SUBHASH REDDY ANDM.R. SHAH, JJ.]

Constitution of India – Art. 226 – Code of Civil Procedure –s. 20 – Coal Mines Provident Fund and Miscellaneous ProvisionsAct, 1948 – Family Coal Mines Pension Scheme, 1998 – Territorialjurisdiction – The Government notified a Family Coal Mines PensionScheme, 1998 dated 05.03.1998 – Earlier, the late husband of theappellant did not opt for the said pension scheme – However, laterthe husband of appellant opted for the pension scheme by notificationdated 09.01.2002 – The late husband of the appellant claimedpayment for pension from Darbhanga, State of Bihar – A writ petitionwas filed by the husband of the appellant in Patna High Courtwhere prayed for grant of refund of Rs.1,33,559/- which waswrongly withheld/ illegally deducted from him – The said writ petitionwas dismissed on 08.02.2013 on the ground of lack of territorialjurisdiction – After dismissal of the said writ petition, the husbandof appellant filed writ petition in Jharkhand High Court for thesame relief – Thereafter, letters dated 07.10.2013 and 06.11.2013were issued from the office of Regional Provident FundCommissioner to the husband of the appellant – The letter statedthat since husband of appellant initially had not opted for pensionscheme in pursuance of 1998 notification, he could not have optedfor pension in the year 2002 – It was further stated that pensionwas erroneously settled by Regional Commissioner, hence, more thanRs.08 lakhs was to be recovered from the husband of the appellant– It was also communicated through same letters that it was decidedto stop payment of monthly pension w.e.f. November, 2013 –Husband of appellant filed another writ petition in Patna High Courtwhere he challenged the letters dated 07.10.2013 and 06.11.2013– The Single Judge of the High Court after noticing the earlierorder of the High Court dated 08.02.2013 and observing that afterdismissal of writ petition, the petitioner had filed another writ C

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Apetition before the Jharkhand High court and the same was pending,held that the order of stoppage of pension is part of retirementbenefit, and petitioner ought to have filed the writ petition beforethe Jharkhand High Court – Hence, the writ petition challengingletters was again dismissed on ground of lack of territorialjurisdiction – The LPA filed against the order of the Single JudgeBwas also dismissed – On appeal, held: The Single Judge of theHigh Court did not correctly consider the facts and pleadings inthe writ petitions filed – The earlier writ petition was filed for refundof wrongly withheld/ illegally detained amount and the subsequentwrit petition challenging letters dated 07.10.2013 and 06.11.2013Cwas filed when payment of pension after 08 years was stopped andhusband of appellant was directed to return the amount of morethan Rs.08 Lakhs – The cause of action for filing a subsequent writpetition was entirely different – The Single Judge of the High Courtcommitted error in dismissing the subsequent writ petition becauseof dismissal of earlier writ petition on the ground of lack of territorialDjurisdiction – For a retiree, who is settled and receiving pension atDarbhanga, it cannot be said that it was necessary for him to filehis petition in the Jharkhand High Court where his earlier writpetition was pending – The part cause of action had arisen in theterritorial jurisdiction of Patna High Court as the husband ofEappellant was continuously receiving pension for last 8 years inDarbhanga – The stoppage of pension at the same place gave acause of action – Thus, the said writ petition is revived at the PatnaHigh Court.

Allowing the appeal, the CourtF

Conclusion

Allowing the appeal, the CourtF

HELD: 1. The Single Judge of the High Court did notcorrectly consider the facts and pleadings in Writ PetitionNo.13955 of 2006 and Writ Petition No. 5999 of 2014. The earlierwrit petition filed by the petitioner in the year 2006 was wherepetitioner had prayed for refund of wrongly withheld/illegallyGdetained amount of Rs.1,33,559/-. When the earlier writ petitionwas filed, there was no issue of non-payment of pension orstoppage of pension since the pension had been started w.e.f.May, 2005. The subsequent Writ Petition No. 5999 of 2014 wasfiled when payment of pension after 08 years was stopped and H

the petitioner was directed to return the amount ofRs.8,09,268/-. The cause of action for filing Writ Petition No.5999of 2014 was entirely different. The Single Judge committed errorin holding that in view of dismissal of the earlier writ petition onthe ground of lack of territorial jurisdiction, the Writ Petition isalso dismissed. [Para 15][290-D-G]

2. The second reason given by Single Judge that petitionerought to have filed the writ petition before the Jharkhand HighCourt also does not commend to this Court. For a retiree, who issettled in Darbhanga and receiving pension at DistrictDarbhhanga, it cannot be said that it was necessary for him to filehis petition in the Jharkhand High Court where his earlier writpetition was pending. The subject matter of the earlier writ petitionwas entirely different and the dismissal of the writ petition doesnot preclude the petitioner to file subsequent writ petition in thesame High Court. [Para 16][290-G-H; 291-A]

3. Form the facts of the present case, this Court is of theconsidered opinion that part of cause of action has arisen withinthe territorial jurisdiction of Patna High Court. The deceasedpetitioner was continuously receiving pension for the last 08 yearsin his saving bank account in State Bank of India, Darbhanga.The stoppage of pension of late husband of appellant affectedhim at his native place, he being deprived of the benefit of pensionwhich he was receiving from his employer. The employer requiresa retiring employee to indicate the place where he shall receivepension after his retirement. Late husband of appellant had optedfor receiving his pension in State Bank of India, Darbhabga, Stateof Bihar, which was his native place, from where he was drawinghis pension regularly for the last 08 years, stoppage of pensiongave a cause of action, which arose at the place where thepetitioner was continuously receiving the pension. This Courtthus, is of the view that the view of the Single Judge as well asthe Division Bench holding the writ petition not maintainable onthe ground of lack of territorial jurisdiction was completelyerroneous and has caused immense hardship to the petitioner.Therefore, the writ petition stands revived before Patna HighCourt. [Para 29][298-F-H; 299-A-B]

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AOil and Natural Gas Commission v. Utpal Kumar Basuand Ors. (1994) 4 SCC 711 : [1994] 1 Suppl. SCR252; Navinchandra N. Majithia v. State of Maharashtraand Ors. (2000) 7 SCC 640 : [2000] 3 Suppl. SCR 82;Kunjan Nair Sivaraman Nair v. Narayanan Nair andOrs. (2004) 3 SCC 277 : [2004] 2 SCR 202; KusumBIngots & Alloys Ltd. v. Union of India and Anr. (2004)6 SCC 254 : [2004] 1 Suppl. SCR 841; Nawal KishoreSharma v. Union of India and Ors. (2014) 9 SCC 329 :[2014] 7 SCR 1027 – relied on.

CSaryu Singh v. The Union of India and Ors. 2015 (2)PLJR 256 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3630of 2020.

FFrom the Judgment and Order dated 03.05.2018 of the High Courtof Judicature at Patna in Letters Patent Appeal No. 1265 of 2017.

Arvind Kumar Gupta, Rishi Bharadwaj, Shaurya Dogra,Abhiesumat Gupta, Jayant K. Sud, Adv. G.S. Makker, Sreekumar C.N.,Bhuvan Kapoor, Uddyam Mukherjee, Krishnayan Sen, Lalit Kumar,GKaustubh Shukla, Parijat Kishore, Abhay Singh, Advs. for the appearingparties.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. Leave granted.

2. This appeal has been filed questioning the Division Benchjudgment of Patna High Court in Letters Patent Appeal No.1265 of2017 dismissing the Letters Patent Appeal of the appellant. Letters PatentAppeal was filed against the judgment of learned Single Judge dated04.08.2017 by which Writ Petition No.5999 of 2014 filed by her latehusband in which she was substituted after death of her husband wasdismissed by learned Single Judge on the ground of lack of territorialjurisdiction.

3. Brief facts of the case for deciding this appeal are:

3.1 The husband of the appellant Shri Bashishtha NarayanMishra was employed in Coal India Limited. He wasworking at Moira Colliery, Bankola Area, DistrictBurdwan, West Bengal. Ministry of Coal, Government ofIndia in exercise of power under Section 3E of Coal MinesProvident Fund and Miscellaneous Provisions Act, 1948and in supersession of the Coal Mines Family PensionScheme, 1971 notified a Family Coal Mines PensionScheme, 1998 dated 05.03.1998. Late husband of theappellant did not opt for the pension Scheme notified underNotification dated 05.03.1998.

3.2 By Notification dated 09.01.2002 Coal Mines PensionScheme, 1998 was amended by inserting paragraph 2A inthe Scheme providing that an employee, who had not optedfor the Coal Mines Family Pension Scheme, 1971 but iscovered by the Provident Fund Scheme may opt forpension within a period of nine months. After theNotification dated 09.01.2002, the same was circulatedby Eastern Coal Fields Limited to all RegionalCommissioners/ Assistant Commissioners.

3.3 The husband of the appellant in pursuance of theNotification dated 09.01.2002 submitted the option optingfor Pension Scheme, which option was forwarded to theSr. Personnel Officers by Manager, Moira Colliery by A

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letter dated 18.11.2003 requesting for transfer ofRs.1,38,164/- from provident fund account of B.N. Mishrato his pension fund. By further letter dated 20.11.2003 ofRegional Commissioner, it was informed that amount ofRs.48,467/- has been adjusted under para 4(2) of Scheme,1998. Late B.N. Mishra was to retire on 30.04.2005. Hispapers for settlement of pension were forwarded to TheRegional Commissioner–1, Coal Mines Provident Fund,Asansol. By letter dated 30.11.2005 written by RegionalCommissioner, Coal Mines Provident Fund, Region-1,Asansol, the late husband of the appellant was asked todeposit the amount of Rs.39,198/- towards recovery ofpension contribution. The pension was sanctioned to ShriMishra after about 14 months from retirement, thereafter,he started receiving pension w.e.f. May, 2005.

3.4 Late Shri B.N. Mishra being native of Village Bhuskol,Police Station, Darbhanga, District Darbhanga, he hadclaimed payment for pension from Darbhanga, State ofBihar. Pension started in account of Late Shri B.N. Mishrawith State Bank of India, Darbhanga, State of Bihar. AWrit Petition No. 13955 of 2006 was filed by late ShriB.N. Mishra in Patna High court where he prayed forgrant of refund of Rs.1,33,559/-, which was wronglywithheld/ illegally deducted from the writ petitioner. Thesaid writ petition was dismissed on 08.02.2013 on theground of lack of territorial jurisdiction. Learned SingleJudge held that petitioner served in the State of WestBengal under the authorities and organizations which arelocated either in States of West Bengal or Jharkhand,hence, High Court of Patna had no territorial jurisdiction.

3.5 After dismissal of the above Writ Petition No.13955 of2006 on 08.02.2013, late Shri B.N. Mishra filed WritPetition No. 4930 of 2013 in Jharkhand High Court forthe relief which he had claimed in the Writ PetitionNo.13955 of 2006 before Patna High Court. When noticeof the writ petition filed by late Shri B.N. Mishra inJharkhand High Court was received by office of RegionalProvident Fund Commissioner, Asansol, a letter dated 07.10.2013 was issued to the husband of the appellant athis place of residence, i.e., Village Bhuskol, Police StationDarbhanga, District Darbhanga, State of Bihar stating thatShri B.N. Mishra having not opted initially for pensionscheme in pursuance of 1998 notification, he could nothave opted for pension in the year 2002. It was statedthat Pension of Shri B.N. Mishra was erroneously settledby Regional Commissioner, hence, Rs.8,01,334/- is to berecovered towards pension payment from May, 2005 toSeptember, 2013.

3.6 By further letter dated 06.11.2013 issued by RegionalCommissioner, Coal Mines Provident Fund, Region-1,Asansol, he was directed to refund amount ofRs.8,09,268/- and entire pension contribution alongwithinterest. He was communicated that it has been decidedto stop payment of monthly pension w.e.f. November,2013. After receipt of the letter dated 07.10.2013, ShriB.N. Mishra sent a reply on 07.11.2013 stating that letterdated 07.10.2013 has been issued due to personal biasarising due to punitive action taken by appropriateauthorities against Regional Commissioner, Region-1,Asansol on a petition filed by Shri B.N. Mishra under theRight to Information Act, 2005. Petitioner sentrepresentations to Secretary, Ministry of Coal andCommission.

3.7 A Writ Petition No. 5999 of 2014 was filed by late ShriB.N. Mishra in Patna High Court where he challengedthe letter dated 07.10.2013 and 06.11.2013 and also soughtdirection for payment of pension to the petitioner withinterest. The writ petition came for hearing before learnedSingle Judge on 04.08.2017. Learned Single Judge noticedthe earlier order of the High Court dated 08.02.2013 bywhich his earlier Writ Petition No.13955 of 2006 wasdismissed on the ground of lack of territorial jurisdiction.Learned Single Judge observed that on similar facts, thesaid writ petition having been dismissed on 08.02.2013 onthe ground of lack of territorial jurisdiction and writ petitionhaving been filed by petitioner before the Jharkhand High A

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ACourt, which is pending, the order of stoppage of pensionis part of retirement benefit, hence, the writ petition isdismissed on the ground of lack of territorial jurisdiction.A LPA No.1265 of 2017 was filed against the judgmentof learned Single Judge dated 04.08.2017. During thependency of writ petition, Shri B.N. Mishra died and hisBwife Shanti Devi was substituted as writ petitioner. LPAwas filed before the Division Bench against the judgmentof learned Single Judge, which has been dismissed by theimpugned judgment, aggrieved by which order, this appealhas been filed.

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4. We have heard Shri Arvind Kumar Gupta, learned counsel forappellant, Shri Sreekumar C.N., for the respondent Nos. 1 to 3 andShri Kaustubh Shukla for respondent Nos. 5 and 8. Shri UddyamMukherjee appeared for respondent No.4.

5. Learned counsel for the appellant submits that High CourtDcommitted error in dismissing the writ petition on the ground of lack ofterritorial jurisdiction. High Court of judicature at Patna had territorialjurisdiction to entertain the writ petition. The part of cause of action hadarisen within the territorial jurisdiction of Patna High Court. Late ShriB.N. Mishra was receiving pension from State Bank of India, DarbhangaEw.e.f. May, 2005 after his retirement on 30.04.2005. After issuance oforder dated 07.10.2013 and 06.11.2013 directing for refund of amountof Rs.8.01.334/- and 8,09,268/- and stopping the pension w.e.f. November,2013, the cause of action arose at Darbhanga where late Shri B.N.Mishra was residing and receiving pension. The earlier Writ PetitionNo.13955 of 2006 was filed on different cause of action where theFsubstantial prayer was for refund of the amount illegally deductedwhereas Writ Petition No.5999 of 2014 was on entirely different causeof action. Late Shri B.N. Mishra was receiving pension at Darbhanga,which pension having been stopped from November, 2013, the cause ofaction arose within the territorial jurisdiction of Patna High Court andGlearned Single Judge as well as the Division Bench erred in dismissingthe writ petition relying on dismissal of earlier writ petition whereas causeof action of both the writ petitions were different and the Writ PetitionNo. 5999 of 2014 could not have been dismissed on the ground of lackof territorial jurisdiction.

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6. Learned counsel for the respondent Nos.1 to 3 submits that thewrit petition had rightly been dismissed on the ground of lack of territorialjurisdiction. He submits that late Shri B.N. Mishra after dismissal of thewrit petition had filed writ petition in the Jharkhand High Court, whichwrit petition was still pending when he filed Writ Petition No.5999 of2014 and the writ petition could not have been entertained by PatnaHigh Court. Learned counsel for the respondent Nos. 1 to 3 does notdispute that part of cause of action arose in territorial jurisdiction ofPatna High Court, however, he submits that on the principle of forumconveniens, the writ petition could not have been entertained at Patnaand the writ petition ought to have been prosecuted in the JharkhandHigh Court.

7. Learned counsel for the respondent Nos. 5 and 8, Shri KaustubhShukla submits that late Shri B.N. Mishra had served in Eastern CoalFields Ltd. at West Bengal and had retired on 30.04.2005 from Burdwan,West Bengal. It is submitted that Shri B.N. Mishra having accepted thejurisdiction of the Jharkhand High Court could not have filed writ petitionat Patna High Court. The husband of the appellant had not opted for theCoal Mines Pension Scheme in 1998 but he opted for the Scheme secondtime in the year 2002 after subsequent notification dated 09.01.2002.The deductions made by Regional Provident Fund Commissioner was inaccordance with Coal Mines Pension Scheme, 1998. Earlier writ petitionfiled by petitioner being Writ Petition No.13955 of 2006 having benedismissed by the Patna High Court on the ground of lack of territorialjurisdiction and no appeal having been filed by Shri B.N. Mishra the saidjudgment became final. Shri B.N. Mishra after dismissal of his earlierwrit petition filed Writ Petition No.4930 of 2013 before the JharkhandHigh Court at Ranchi, which clearly proves that Shri B.N. Mishra hadaccepted the jurisdiction of Jharkhand High Court and pursued his writpetition there. The mere fact that letters dated 07.10.2013 and 06.11.2013were received at Darbhanga, the Patna High Court shall have noterritorial jurisdiction to entertain the writ petition.

8. Learned counsel appearing for the respondent No.4 alsoadopted the above submissions.

9. Learned counsel for the parties have also placed reliance onvarious judgments of this Court as well as judgment of Patna High Court,which shall be noticed while considering the submissions in detail.

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A10. From the submissions of the learned counsel for the partiesand the materials on record, the following questions have arisen in thisappeal:-

(i) Whether the writ petition filed by late Shri B.N. Mishra beingWrit Petition No. 5999 of 2014 is similar to Writ Petition No.B13955 of 2006 and the Patna High Court had territorialjurisdiction to entertain the writ petition?

(ii) Whether part of cause of action for filing the Writ PetitionNo. 5999 of 2014 arose within the territorial jurisdiction ofPatna High Court?

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11. Both the questions being interrelated are being taken together.We may first notice the relevant pleadings in Writ Petition No. 5999 of2014, which are the material facts or integral facts for claiming relief inthe writ petition. In paragraph 5 of the writ petition, petitioner had pleadedthat he retired on 30.04.2005 and thereafter settled at his native place inDDarbhanga District, State of Bihar where in his savings account withState Bank of India, Darbhanga his monthly pension is being paid sinceMay, 2005. In paragraphs 20 and 22, petitioner has pleaded about theletter dated 07.10.2013 issued by Regional Provident Fund Commissioner,Region-1, Asansol and the letter dated 06.11.2013. Paragraphs 5, 20 and22 are extracted below for ready reference:-E

“5. That the petitioner was subsequently promoted as PersonnelManager in Moira Colliery, Eastern Coal Fields Ltd., Bankola Area,P.O. Moira, Dist. – Burdwan from where he retired from serviceon 30/04/2005 and thereafter settled at his native village inDarbhanga Dist., Bihar where in his S/B A/C with State Bank ofFIndia, Darbhanga his monthly pension is being paid since May,2005.

Copy of notice of Super-annuation vide letter no. ECL/C-5 (D) Superannuation/EE 1572 dated 23/24/11/2004is annexed herewith and marked as Annexure-1.

G20. That upon receipt of a copy of writ petition from the learnedCentral Govt. Counsel the Regional P.F. Commissioner, Region-1, Asansol issued a notice vide No. CPF/32/Legal/B.N. Mishra/R-1/ASN/3481 dated 7/10/2013 whereby he declared the paymentof pension to the petitioner from May 2005 till date as wholly H

against the provisions of Para-15 of Coal Mines Pension Scheme1998 which says that option once exercised shall be final andsince the petitioner had firstly submitted a negative option so thesubsequent submission of option in the affirmative is against theScheme. Further the petitioner was also directed to refund theentire amount of pension amounting to Rs.8,01,334/- with interestpaid to him from May 2005 to October 2013. Furthermore, thepensioner was also informed vide the aforesaid notice that paymentof pension to him shall be stopped from November, 2013.

Copy of letter no. CPF/32/Legal/B.N. Mishra/R-1/ASN/3481 dated 7/10/2013 along with relevant portion of Para-15 of CMPS 1998 is annexed herewith and marked as Annexure-12.

22. That the Regional P.F. Commissioner did not wait for a replyfrom the petitioner to the notice issued by him and instead in ahaste issued letter No. CPF/32/1/Legal/B.N. Mishra/R-1/4056dated 6/11/2013 whereby he stopped payment of pension to thepetitioner from the month of Nov. 2013 and also directed him torefund the entire amount of pension paid to the petitioner fromMay 2005 to Oct. 2013 amounting to Rs.8,09,268/-.

Copy of letter no. CPF/32/1/Legal/B.N. Mishra/R-1/4056dated 6/11/2013 is annexed herewith and marked asAnnexure-14.”

12. The copy of the letters dated 07.10.2013 and 06.11.2013 werealso annexed with the writ petition, which were addressed to late ShriB.N. Mishra at his address of Village Bhusakoul, Police Station DarbhangaSadar, District Darbhanga, State of Bihar. Petitioner after receipt of theletter dated 07.10.2013 immediately represented on 07.11.2013. Thereis no dispute between the parties that the pension of late Shri B.N. Mishrawas stopped from November, 2013 and the Writ Petition No.5999 of2014 was filed after stoppage of pension, which he was getting for thelast 08 years. Further by letter dated 06.11.2013, petitioner was alsodirected to return the amount of Rs.8,09,268/-, which was amount ofpension he received in his bank account in State Bank of India, Darbhangafrom May, 2005.

13. We may first notice the order of learned Single Judge dismissingthe writ petition on the ground of lack of territorial jurisdiction dated A

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A04.08.2017. Paragraph 5 of the judgment gives reasons for dismissingthe writ petition. In paragraph 5, mainly two reasons have been given bythe learned Single Judge for dismissing the writ petition; (i) Earlier WritPetition No.13955 of 2006 for grant of retiral benefits was dismissed on08.02.2013 on the ground of lack of territorial jurisdiction. The petitionerdid not move in LPA or before the Supreme Court; and (ii) When theBpetition of payment of retiral benefits is pending before the JharkhandHigh Court, the petitioner should have filed the writ petition before thesame High court against the order of stoppage of pension as the paymentof pension is also a part of retiral benefits.

14. In the LPA against the order of learned Single Judge, DivisionCBench vide judgment dated 03.05.2018 after quoting paragraphs 4 and 5of the judgment of the learned Single Judge, Patna High Court observedthat:- “We do not find any legal infirmity in the view so taken by thelearned Single Judge. The appeal is dismissed.”D

15. The learned Single Judge did not correctly consider the factsand pleadings in Writ Petition No.13955 of 2006 and Writ Petition No.5999 of 2014. The earlier writ petition filed by the petitioner in the year2006 was where petitioner had prayed for refund of wrongly withheld/illegally detained amount of Rs.1,33,559/-. When the earlier writ petitionEwas filed, there was no issue of non-payment of pension or stoppage ofpension since the pension had been started w.e.f. May, 2005. Thesubsequent Writ Petition No. 5999 of 2014 was filed when payment ofpension after 08 years was stopped and the petitioner was directed toreturn the amount of Rs.8,09,268/-. The cause of action for filing WritFPetition No.5999 of 2014 was entirely different. The learned Single Judgecommitted error in holding that in view of dismissal of the earlier writpetition on the ground of lack of territorial jurisdiction, the Writ Petitionis also dismissed.

16. The second reason given by learned Single Judge that petitionerGought to have filed the writ petition before the Jharkhand High Courtalso does not commend us. For a retiree, who is settled in Darbhangaand receiving pension at District Darbhhanga, it cannot be said that itwas necessary for him to file his petition in the Jharkhand High Courtwhere his earlier writ petition was pending. The subject matter of theearlier writ petition was entirely different and the dismissal of the writH

petition does not preclude the petitioner to file subsequent writ petition inthe same High Court.

17. The Division Bench of the High Court did not advert to thefacts or pleadings of the writ petition and only after quoting paragraphs4 and 5 of the judgment of the learned Single Judge dismissed the writpetition without adverting to any issue, which was raised in the LPA bythe writ petitioner. Copy of the grounds of LPA No. 1265 of 2017 hasbeen filed as Annexure P-24, which indicate that petitioner has clearlypleaded the relevant facts and specifically stated that cause of actionarisen in the year 2013 cannot be subject matter of writ petition filed 08years ago in the year 2006. The main pleadings in the writ petition werenot dealt with by the High Court and the High Court having dismissedthe writ petition on the ground of lack of territorial jurisdiction, we needto advert as to whether there was any cause of action for entertainingthe writ petition by Patna High Court.

18. Mulla on the Code of Civil Procedure while commenting onSection 20 of the Civil Procedure Code defined cause of action infollowing words:- “The expression ‘cause of action’ has acquired a judicially settledmeaning. In the restricted sense ‘cause of action’ means thecircumstances forming the infraction of the right or the immediateoccasion for the action. In the wider sense, it means the necessaryconditions for the maintenance of the suit, including not only theinfraction of the right, but the infraction coupled with the rightitself. Compendiously the expression means every fact by whichit would be necessary for the plaintiff to prove, if traversed, inorder to support his right to the judgment of the Court………….”

19. P. Ramanatha Aiyar in Advanced Law Lexicon, 3[rd] Edition,Volume 1, has defined the cause of action in following words:- “’Cause of action’ has been defined as meaning simply a factualsituation the existence of which entitles one person to obtain fromthe Court a remedy against another person. The phrase has beenheld from earliest time to include every fact which is material tobe proved to entitle the plaintiff to succeed, and every fact whicha defendant would have a right to traverse. “Cause of action” hasalso been taken to mean that particular act on the part of thedefendant which gives the plaintiff his cause of complaint, or the A

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Asubject matter of the grievance founding the action, not merelythe technical cause of action.”

20. Black’s Law Dictionary defines the cause of action in followingwords:- “A group of operative facts giving rise to one or more bases forBsuing; a factual situation that entitles one person to obtain a remedyin court from another person…………”

21. This Court had occasion to consider the cause of action incontext of Article 266 of the Constitution and has explained the expression“cause of action” in large number of cases. We may refer to a ThreeCJudge Bench judgment of this Court in Oil and Natural GasCommission Vs. Utpal Kumar Basu and Ors., (1994) 4 SCC 711where in paragraphs 5 and 6 following has been laid down:-

“5. Clause (1) of Article 226 begins with a non obstante clause— notwithstanding anything in Article 32 — and provides thatDevery High Court shall have power “throughout the territories inrelation to which it exercises jurisdiction”, to issue to any personor authority, including in appropriate cases, any Government, “withinthose territories” directions, orders or writs, for the enforcementof any of the rights conferred by Part III or for any other purpose.EUnder clause (2) of Article 226 the High Court may exercise itspower conferred by clause (1) if the cause of action, wholly or inpart, had arisen within the territory over which it exercisesjurisdiction, notwithstanding that the seat of such Government orauthority or the residence of such person is not within thoseterritories. On a plain reading of the aforesaid two clauses ofFArticle 226 of the Constitution it becomes clear that a High Courtcan exercise the power to issue directions, orders or writs for theenforcement of any of the fundamental rights conferred by PartIII of the Constitution or for any other purpose if the cause ofaction, wholly or in part, had arisen within the territories in relationGto which it exercises jurisdiction, notwithstanding that the seat ofthe Government or authority or the residence of the person againstwhom the direction, order or writ is issued is not within the saidterritories. In order to confer jurisdiction on the High Court ofCalcutta, NICCO must show that at least a part of the cause ofaction had arisen within the territorial jurisdiction of that Court.HThat is at best its case in the writ petition.

SHANTI DEVI ALIAS SHANTI MISHRA v. UNION OF INDIA& ORS. [ASHOK BHUSHAN, J.]

6. It is well settled that the expression “cause of action” meansthat bundle of facts which the petitioner must prove, if traversed,to entitle him to a judgment in his favour by the Court. In ChandKour 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 defencewhich may be set up by the defendant, nor does it dependupon the character of the relief prayed for by the plaintiff. Itrefers entirely to the ground set forth in the plaint as the causeof action, or, in other words, to the media upon which the plaintiffasks the Court to arrive at a conclusion in his favour.”

Therefore, in determining the objection of lack of territorialjurisdiction the court must take all the facts pleaded in support ofthe cause of action into consideration albeit without embarkingupon an enquiry as to the correctness or otherwise of the saidfacts. In other words the question whether a High Court hasterritorial jurisdiction to entertain a writ petition must be answeredon the basis of the averments made in the petition, the truth orotherwise whereof being immaterial. To put it differently, thequestion of territorial jurisdiction must be decided on the factspleaded in the petition. Therefore, the question whether in theinstant case the Calcutta High Court had jurisdiction to entertainand decide the writ petition in question even on the facts allegedmust depend upon whether the averments made in paragraphs 5,7, 18, 22, 26 and 43 are sufficient in law to establish that a part ofthe cause of action had arisen within the jurisdiction of the CalcuttaHigh Court.”

22. This Court in Navinchandra N. Majithia Vs. State ofMaharashtra and Ors., (2000) 7 SCC 640 had occasion to considerterritorial jurisdiction of High Court under Article 226(2). Dealing withconstitutional amendment made in Article 226(2), this Court laid downfollowing in paragraph 37:-

“37. The object of the amendment by inserting clause (2)in the article was to supersede the decision of the Supreme Courtin Election Commission v. Saka Venkata Subba Rao [AIR 1953SC 210] and to restore the view held by the High Courts in thedecisions cited above. Thus the power conferred on the High A

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ACourts under Article 226 could as well be exercised by any HighCourt exercising jurisdiction in relation to the territories withinwhich “the cause of action, wholly or in part, arises” and it is nomatter that the seat of the authority concerned is outside theterritorial limits of the jurisdiction of that High Court. Theamendment is thus aimed at widening the width of the area forBreaching the writs issued by different High Courts.”

23. It was further held that the collocation of the words “cause ofaction, wholly or in part, arises” seems to have been lifted from Section20 of the Code of Civil Procedure. This Court also quoted the definitionof “cause of action” given by Lord Esher in Read Vs. Brown in paragraphC39. In paragraphs 38, 39 and 41, following was laid down:- “38. “Cause of action” is a phenomenon well understood in legalparlance. Mohapatra, J. has well delineated the import of the saidexpression by referring to the celebrated lexicographies. Thecollocation of the words “cause of action, wholly or in part, arises”Dseems to have been lifted from Section 20 of the Code of CivilProcedure, which section also deals with the jurisdictional aspectof the courts. As per that section the suit could be instituted in acourt within the legal limits of whose jurisdiction the “cause ofaction wholly or in part arises”. Judicial pronouncements haveEaccorded almost a uniform interpretation to the said compendiousexpression even prior to the Fifteenth Amendment of theConstitution as to mean “the bundle of facts which would benecessary for the plaintiff to prove, if traversed, in order to supporthis right to the judgment of the court”.

F39. In Read v. Brown [(1888) 22 QBD 128 : 58 LJQB 120 : 60LT 250 (CA)] Lord Esher, M.R., adopted the definition for thephrase “cause of action” that it meant “every fact which it would be necessary for the plaintiff toprove, if traversed, in order to support his right to the judgmentGof the court. It does not comprise every piece of evidencewhich is necessary to prove each fact, but every fact which isnecessary to be proved”.

41. Even in the context of Article 226(2) of the Constitution thisCourt adopted the same interpretation to the expression “causeof action, wholly or in part, arises” vide State of H

Rajasthan v. Swaika Properties [(1985) 3 SCC 217]. A three-Judge Bench of this Court in Oil and Natural GasCommission v. Utpal Kumar Basu [(1994) 4 SCC 711] observedthat it is well settled that the expression “cause of action” meansthat bundle of facts which the petitioner must prove, if traversedto entitle him to a judgment in his favour. Having given such awide interpretation to the expression Ahmadi, J. (as the learnedChief Justice then was) speaking for M.N. Venkatachaliah, C.J.and B.P. Jeevan Reddy, J., utilised the opportunity to caution theHigh Courts against transgressing into the jurisdiction of the otherHigh Courts merely on the ground of some insignificant eventconnected with the cause of action taking place within the territoriallimits of the High Court to which the litigant approaches at hisown choice or convenience. The following are such observations.(SCC p. 722, para 12)

“If an impression gains ground that even in cases which falloutside the territorial jurisdiction of the court, certain membersof the court would be willing to exercise jurisdiction on theplea that some event, however trivial and unconnected withthe cause of action had occurred within the jurisdiction of thesaid court, litigants would seek to abuse the process by carryingthe cause before such members giving rise to avoidablesuspicion. That would lower the dignity of the institution andput the entire system to ridicule. We are greatly pained to sayso but if we do not strongly deprecate the growing tendencywe will, we are afraid, be failing in our duty to the institutionand the system of administration of justice. We do hope thatwe will not have another occasion to deal with such a situation.”

24. In Kunjan Nair Sivaraman Nair Vs. Narayanan Nair andOrs., (2004) 3 SCC 277, this Court explained the expression “causeof action” and has quoted with approval the cause of action as definedby Halsbury’s Laws of England in paragraph 16 and 17:- “16. The expression “cause of action” has acquired a judiciallysettled meaning. In the restricted sense cause of action meansthe circumstances forming the infraction of the right or theimmediate occasion for the action. In the wider sense, it meansthe necessary conditions for the maintenance of the suit, includingnot only the infraction of the right, but the infraction coupled with AB

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Athe right itself. Compendiously the expression means every factwhich would be necessary for the plaintiff to prove, if traversed,in order to support his right to the judgment of the court. Everyfact which is necessary to be proved, as distinguished from everypiece of evidence which is necessary to prove each fact, comprisesin “cause of action”.B17. In Halsbury’s Laws of England (4th Edn.) it has been statedas follows:

“‘Cause of action’ has been defined as meaning simply a factualsituation the existence of which entitles one person to obtainCfrom the court a remedy against another person. The phrasehas been held from earliest time to include every fact which ismaterial to be proved to entitle the plaintiff to succeed, andevery fact which a defendant would have a right to traverse.‘Cause of action’ has also been taken to mean that particularact on the part of the defendant which gives the plaintiff hisDcause of complaint, or the subject-matter of grievance foundingthe action, not merely the technical cause of action.”

25. Another judgment which needs to be noticed is Kusum Ingots& Alloys Ltd. Vs. Union of India and Anr., (2004) 6 SCC 254wherein this Court reiterated the meaning of cause of action in paragraphE6. This Court reiterated that even if a small fraction of cause of actionaccrues within the jurisdiction of the Court, the Court will have jurisdictionin the matter. In paragraph 18, following was held:- “18. The facts pleaded in the writ petition must have a nexus onthe basis whereof a prayer can be granted. Those facts whichFhave nothing to do with the prayer made therein cannot be said togive rise to a cause of action which would confer jurisdiction onthe Court.”

26. Another judgment which has been relied by learned counselfor the appellant is Nawal Kishore Sharma Vs. Union of India andGOrs., (2014) 9 SCC 329. In the above case, the petitioner had filed awrit petition seeking various reliefs including disability compensation andpecuniary damages. The petitioner approached the Patna High Courtfor grant of various reliefs. Although, he was declared unqualified byorders issued by the Shipping Department, Government of India, Mumbai.

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SHANTI DEVI ALIAS SHANTI MISHRA v. UNION OF INDIA& ORS. [ASHOK BHUSHAN, J.]

This Court held that Patna High Court has a jurisdiction to entertain thepetition. Following was laid down in paragraph 17:-

“17. We have perused the facts pleaded in the writ petition andthe documents relied upon by the appellant. Indisputably, theappellant reported sickness on account of various ailments includingdifficulty in breathing. He was referred to hospital. Consequently,he was signed off for further medical treatment. Finally, therespondent permanently declared the appellant unfit for sea servicedue to dilated cardiomyopathy (heart muscle disease). As a result,the Shipping Department of the Government of India issued anOrder on 12-4-2011 cancelling the registration of the appellant asa seaman. A copy of the letter was sent to the appellant at hisnative place in Bihar where he was staying after he was foundmedically unfit. It further appears that the appellant sent arepresentation from his home in the State of Bihar to the respondentclaiming disability compensation. The said representation wasreplied by the respondent, which was addressed to him on hishome address in Gaya, Bihar rejecting his claim for disabilitycompensation. It is further evident that when the appellant wassigned off and declared medically unfit, he returned back to hishome in the district of Gaya, Bihar and, thereafter, he made allclaims and filed representation from his home address at Gayaand those letters and representations were entertained by therespondents and replied and a decision on those representationswere communicated to him on his home address in Bihar.Admittedly, the appellant was suffering from serious heart muscledisease (dilated cardiomyopathy) and breathing problem whichforced him to stay in his native place, wherefrom he had beenmaking all correspondence with regard to his disabilitycompensation. Prima facie, therefore, considering all the factstogether, a part or fraction of cause of action arose within thejurisdiction of the Patna High Court where he received a letter ofrefusal disentitling him from disability compensation.”

27. Learned counsel for the appellant has also placed reliance ona Division Bench judgment of Patna High court in Saryu Singh Vs.The Union of India and Ors., 2015(2) PLJR 256. The above was acase where the petitioner had claimed the due pensionary benefits whosegrievance was that payment made to him was less payment. In the AB

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Aabove context, the Division Bench in paragraphs 63, 64 and 66 laid downfollowing:- “63. Recently pointed out the Supreme Court, in Nawal KishoreSharma v. Union of India, reported in (2014) 9 SCC 329, thatthe question, whether or not cause of action, wholly or in part,Bhas arisen within the territorial limit of any High Court, shall haveto be decided in the light of the nature and character of theproceedings under Article 226 of the Constitution of India. In orderto maintain a writ petition, the petitioner has to establish that alegal right claimed by him has been infringed by the respondentswithin the territorial limit of the Court’s jurisdiction.

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64. In the backdrop of the position of law, as discussed above, itneeds to be noted that the writ petitioner was, admittedly, anemployee of Coal India Limited and as per the terms and conditionsof his employment, the writ petitioner, as an employee, is,admittedly, required to be paid his pension and pensionery benefitsDby his employer at Patna.

66. If, therefore, the writ petitioner is not paid the sum of money,which is due and payable to him as pension and pensionerybenefits, at Patna, it becomes obvious that his right to receive dueand payable pension and pensionery benefits, at Patna, is beingEdenied; consequently the infringement of his right or his sufferanceof injury is at Patna.”

28. The above judgment of the same High Court was relevant inthe facts of the present case, which judgment although was deliveredprior in time, but was not noticed by the learned Single Judge as well asFthe Division Bench.

29. Form the facts of the present case, we are of the consideredopinion that part of cause of action has arisen within the territorialjurisdiction of Patna High Court. The deceased petitioner wascontinuously receiving pension for the last 08 years in his saving bankGaccount in State Bank of India, Darbhanga. The stoppage of pension oflate B.N. Mishra affected him at his native place, he being deprived ofthe benefit of pension which he was receiving from his employer. Theemployer requires a retiring employee to indicate the place where heshall receive pension after his retirement. Late Shri B.N. Mishra hadopted for receiving his pension in State Bank of India, Darbhabga, StateH

of Bihar, which was his native place, fromwhere he was drawing hispension regularly for the last 08 years, stoppage of pension gave a causeof action, which arose at the place where the petitioner was continuouslyreceiving the pension. We, thus, are of the view that the view of thelearned Single Judge as well as the Division Bench holding the writpetition not maintainable on the ground of lack of territorial jurisdictionwas completely erroneous and has caused immense hardship to thepetitioner.

30. Another submission which has been advanced by learnedcounsel for the respondent Nos. 1 to 3 is that the writ petition was rightlydismissed on the principle of forum non conveniens. Forum nonconveniens has been defined by P. Ramanatha Aiyar, Advanced LawLexicon, 3[rd] Edition in following words:- “The principle that a case should be heard in a Court of the placewhere parties, witnesses, and evidence are primarily located.”

31. Black’s Law Dictionary defines forum conveniens in followingwords:- “The court in which an action is most appropriately brought,considering the best interests and convenience of the parties andwitnesses.”

32. This Court in Kusum Ingots & Alloys Ltd. (supra) hasalso referred to principle of forum conveniens. Following was stated inparagraph 30:- “Forum conveniens

30. We must, however, remind ourselves that even if a small partof cause of action arises within the territorial jurisdiction of theHigh Court, the same by itself may not be considered to be adeterminative factor compelling the High Court to decide the matteron merit. In appropriate cases, the Court may refuse to exerciseits discretionary jurisdiction by invoking the doctrine of forumconveniens.[See Bhagat Singh Bugga v. Dewan JagbirSawhney [AIR 1941 Cal 670], Madanlal Jalanv. Madanlal [AIR1949 Cal 495], Bharat Coking Coal Ltd. v. Jharia Talkies &Cold Storage (P) Ltd. [1997 CWN 122], S.S. Jain & Co. v.Union of India [(1994) 1 CHN 445] and New Horizons Ltd. v.Union of India [AIR 1994 Del 126].”

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A33. As noted above, the learned single Judge has also observedthat petitioner ought to have filed the writ petition in Jharkhand HighCourt where his earlier writ petition was pending. The earlier writ petitionwhich was initially filed in 2006 in Patna High Court was for refund ofthe amount as noted above. After dismissal of the writ petition by PatnaHigh Court on the ground of lack of territorial jurisdiction, Shri B.N.BMishra had filed a Writ Petition No.4930 of 2013 in Jharkhand HighCourt for the relief which was claimed in Writ Petition No.13955 of2006. As noted above, the cause of action for filing the Writ Petition No.5999 of 2014 was entirely different. Stoppage of pension and asking forrefund of more than Rs. 08 lakhs amount had serious adverse effect onCthe petitioner, who was staying at his native place Darbhanga. A retiredemployee, who is receiving pension, cannot be asked to go to anothercourt to file the writ petition, when he has a cause of action for filing awrit petition in Patna High Court. For a retired employee convenience isto prosecute his case at the place where he belonged to and was gettingpension. The submission of the learned counsel for the respondent Nos.1Dto 3 on principle of forumnon conveniens has no substance.

34. In result, we allow the appeal, set aside the judgment of thePatna High Court and hold that Writ Petition No. 5999 of 2014 was fullymaintainable at Patna High Court and learned Single Judge and DivisionBench committed error in dismissing the writ petition on the ground ofElack of territorial jurisdiction. The writ petition stands revived before thePatna High Court.

35. We are also of the view that appellant is entitled for an interimorder in the writ petition for her sustenance. The appellant’s husband,who had filed the writ petition had died during the pendency of the writFpetition. After his death, the appellant, the widow was substituted. Sixyears have passed after filing of the writ petition wherein stoppage ofpension was questioned. Appellant being the widow is also entitled forpensionary benefit for her sustenance since her husband was receivingpension. We are of the view that during the pendency of the writ petitionthe appellant is entitled to be paid provisional pension which shall beGsubject to final decision in the writ petition. We, therefore, directrespondent Nos.4 to 8 to ensure that provisional pension to the appellantis paid from the month of December, 2020, which shall be subject tofinal orders passed in the writ petition. The appeal is allowed accordingly.

HAnkit Gyan