JUDGMENT
Sudhir Narain, J.
1. This Special Appeal arises out of the order passed by learned Single Judge whereby he declined to exercise jurisdiction under Article 226 of the Constitution on The ground that this Court has territorial jurisdiction in respect of an order passed by respondent No. 1 on a representation being made by the appellant Under Section 164 of the Army Act, 1950 (hereinafter referred to as the Act).
2. The facts of the case are that the appellant was charged of murder of Sipoy Driver Parvin Kumar Under Section 69 of the Army Act read with 302 of Indian Penal Code by a General Court Martial. He was sentenced to undergo imprisonment for life and was dismissed from service. The proceedings of the Genera) Court Martial were confirmed by the confirming authority and the appellant was sent to civil Jail at Katuwa, Tehsil Hira Nagar, Jammu from where he was subsequently transferred to Central Jail Naini, Allahabad on compassionate ground on the representation made by his wife.
3. The appellant, after the order of sentence having been confirmed made a representation Under Section 164(2) of the Army Act to respondent No. 2. It was rejected by him on 10-6-1984. This order was communicated to the appellant at Allahabad where he was serving his sentence in jail.
4. A preliminary objection was raised at the time of hearing of the writ petition that as the Court Martial proceedings were taken at Jammu where he was sentenced and convicted for the offence and later on his representation being filed before respondent No. 2, at Delhi was rejected at Delhi, this Court had no jurisdiction to entertain the writ petition in respect of orders passed by General Court Martial at Jammu and the order passed by respondent No. 2 at Delhi. The objection of the respondents was accepted and the writ petition was dismissed.
5. We have heard Sri G. D. Mukerji, learned counsel for the appellant and Shri Sushil Harkauli learned counsel for the respondents.
6. The main thrust of the submissions of learned counsel for the appellant is that as the order passed by respondent No. 2 was served at Allahabad, a part of cause of action arose at Allahabad and this Court had jurisdiction to entertain the writ petition filed in this Court. Prior to insertion of Clause (1 -b) in Article 226 of the Constitution of India by the (Fifteenth Amendment) Act, 1963, the view was that writ could be issued by the High Court only to the person authority or Government residing or located within the territorial jurisdiction of the High Court. In the year 1963 by the Constitution (Fifteenth Amendmend) Act Clause (1 -A) was introduced in Article 226 and additional basis of jurisdiction was confirmed viz, the place where cause of action wholly or in part arises. This provision is similar to Section 20(c) of the Code of Civil Procedure. The legal position was explained in the decision in Oil and Natural Gas Commission v. Utpal Kumar Basu, (1994) 4 SCC 711. The Supreme Court reiterated that expression “cause of action” means the bundle of facts if traversed it would be necessary for the petitioner to prove in order to support his right to judgment in his favour.
7. Admittedly, the order imposing punishment on a delinquent is not effective unless it is published and communicated to the officer concerned. In State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313, it was held that mere passing of an order of dismissal by an appropriate authority and kept on its file does not take effect unless it is communicated to the officer concerned or is otherwise published. On this view, it has been held in various decisions of this Court and of other High Courts that the cause of action arises at the place where the order of dismissal from service or other penalties imposed on a servant is served. In State of Madhya Pradesh and Ors. v. Bhaskar Datt Misra and Ors., 1986 UPLBEC 252 where the officer was serving at Madhya Pradesh but was served with the order of termination at Allahabad it was held that the Court at Allahabad had jurisdiction to entertain the suit as the cause of action arose at Allahabad where the order of termination was communicated. Similar view was expressed in Kunhabdulla v. Union of India and Ors., ILR 1984 (1) Kerala Series 199 and S. T. Veeran and Ors. v. Union of India and Anr. , 1984 Labour and Industrial Cases (N. 0. C.) 67 (Andhra Pradesh).
8. The main question is whether cause of action arises at Allahabad on the communication of the decision on the representation of the appellant by respondent No. 2 at Allahabad. The right to action and cause of action are two different things. This distinction was considered by a Division Bench of this Court in Daya Shankar Bharadwaj v. Chief of Air Staff, New Delhi and Ors., AIR 1988 AH 36, wherein it was observed :
“A right of action arises as soon as there is an invasion of right. But ’cause of action’ and ‘right of action’,….are not synonymous or interchangeable. A right of action is the right to enforce a cause of action (American Jurisprudence 2nd Edition Vol. 1.). A person residing any where 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 Article 226 can be invoked of that High Court only within whose territorial limits the cause of action wholly or in part arises. The cause of action arises by action of the Government or authority and not by residence of the person aggrieved.”
9. An order in posing penalty does not take effect unless it is communicated and the cause of action arises at a place where it is communicated but if an order is passed in appeal or on representation filed by delinquent or an accused and the order is confirmed it does not give any fresh cause of action at a place where the order of appellate authority is communicated. It is an intimation of an order passed on the appeal or the representation made by the delinquent at a place where he is residing or where he indicates his address 1or communication of the order which may be passed on appeal by the authority concerned. Every order which is communicated to a person at a particular place does not give cause of action where it is communicated. In State of Rajasthan and Ors. v. Swaika Properties and Anr. , AIR 1985 SC 1289, wherein a notification issued by the Slate Government under Section 52 (2) of Rajasthan Urban improvement Act was served at Calcutta on the petitioner of that case, it was held that the High Court at Calcutta had no jurisdiction to entertain the writ petition merely on the ground that the service of notice was effected upon him at Calcutta, The proceedings for acquisition had taken place at Jaipur and such proceedings were complete and merely serving the notice Under Section 52 of the Act no cause of action did arise at Calcutta. In Vishnu Kumar Bhargawa and Ors. v. Metropolitan Magistrate, Bombay and Ors., 1986 ALJ 1093, wherein a complaint was filed against the petitioner of that case in the court of Metropolitan Magistrate, Bombay but its notice was alleged to be served at Allahabad, the Court held that the High Court at Allahabad had no jurisdiction to entertain the writ petition. The service of notice was not treated as integral part of cause of action in as much as for succeeding in the case, service of notice was not material.
10. In case an appeal is dismissed and the order is communicated where the petitioner resides, the service of notice itself does not given any cause of action but it is only a communication of a decision on the appeal or representation made by him. In a case the order of termination or other penalty is imposed it is not effective unless it is communicated, but the same principle is not applicable when an appeal preferred by the petitioner himself, is decided.
11. Learned counsel for the appellant next submitted that the doctrine of merger is applicable in the case when an order is passed in the appeal. It is the appellate order which is effective and the place where it is communicated should be treated as a place where cause of action arises. He placed reliance upon Keval Ram v. Smt. Ram Lubhai and Ors., AIR 1987 SC 1304, wherein observation was made that the decree of the trial court merges in the appellate decree. This principle is well settled but the court can examine in respect of a proceedings whether the order passed by the appellate authority or the revisional authority merges with the order passed by the subordinate authority and which order is effective in a particular circumstances passed by an authority.
12. It is relevant to examine the provisions of Army Act and the Rules under which the proceedings were initiated against the appellant. Section 71 of the Army Act provides the punishment which could be awarded by the Court Martial. Section 74 provides that an officer shall be sentenced to be cashiered before he is awarded any of the punishments specified in Clauses (a) to (c) of Section 71. Section 153 provides that no finding or sentence of general district or summary general. Court Martial shall be valid except so far as it may be confirmed as provided by the Act. The findings and sentence of the general Court-martial is confirmed by the Central Government, or by any officer empowered in this behalf by warrant of the Central Government Under Section 154 of the Act. Any person who considers himself aggrieved by any order passed by any court-martial may present a petition to the officer or authority empowered to confirm any finding on the sentence before such confirmation under Sub-clause (1) of Section 164 of the Act and even after confirmation he may present a petition under Sub-section (2) of Section 164 of the Act. Section 164 of the Act reads as under:
“164. Remedy against order, finding or sentence of court-martial.- (1) Any person subject to this Act who considers himself aggrieved by an order passed by any court-martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court martial, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.
(2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any court-martial which has been confirmed, may present a petition to the Central Government, the (Chief of the Army Staff) or any prescribed Officer superior in command to the one who confirmed such finding or sentence, and the Central Government, the (Chief of the Army Staff) or other officer, as the case may be, may pass such order thereon as it or he thinks fit.”
13. The appellant was tried by General Court Martial at Jammu He was found guilty of the charges against him and was sentenced to Civil imprisonment for life and was dismissed from service. In Para 5 of the writ petition it is stated that proceeding of the General Court Martial was confirmed by the confirming authority and the appellant was sent to civil jail at Katuwa, Tahsil Hira Nagar, Jammu. Subsequently on the representation made on behalf of the appellant’s wife he was trans ferred from civil jail Jammu to Naini Central Jail, Allahabad. He made representation through his counsel from Allahabad Under Section 164(2) of the Army Act. The Chief of the Army Staff, respondent No 2 rejected the representation vide order dated 10th June, 1994 and the decision was communicated to the counsel for the appellant at Allahabad.
14. Learned counsel for the appellant contended that the appellant was taken into custody before the proceedings of the General Court Martial started. He was served with the chargesheet and was sentenced at the time he was already in civil jail at Katuwa, Tahsil Hira Nagar Jammu. The order of sentence was subject to confirmation It is contended that mere passing of the order at Jammu was not relevant unless it was confirmed. It is, however, not denied that the order of sentence was confirmed at Jammu by the confirming authority The appellant was already in jail. It is only after the confirmation of the sentence the appellant had preferred an appeal/representation Under Section 164(2) of the Army Act. The appellant was sentenced for life imprisonment and was dismissed from service. The confirmation of the sentence was also made at Jammu. The mere fact that he sent representation from Allahabad and the decision on his representation was communicated at Allahabad did not give any cause of action at Allahabad. In Special Appeal No. 300 of 1995, Sipoy Ranchhor Singh v. Union of India and Ors. it was held that merely because the delinquent served the sentence in district Jail, the cause of action does not arise at the place where he is serving the sentence but it is the place where the person is tried, sentenced and convicted. The Court declined to issue a writ of mandamus to decide the representation by the Chief of Army.
15 The doctrine of merger even if applied in relation to such proceeding, it is only the place where the appeal is decided, the Court will have jurisdiction to entertain the petition of the appellant. In Collector of Customs. Calcutta v. East India Commercial Company Calcutta and Ors., AIR 1963 SC 1124, it was held that once an order of original anthority is taken in appeal to the appellate authority it is the High Court within whose jurisdiction the appellate order has been passed, will only have jurisdiction to entertain the writ petition under Article 226 of the Constitution of India.
16. In these circumstances the writ petition filed by the appellant in this Court under Article 226 of the Constitution of India was not maintainable. The Special Appeal is accordingly dismissed.