ORDER
1. The question which arises for consideration in this appeal is as to whether the cause of action or part of cause of action has arisen within the territorial jurisdiction of this Court so as to entitle it to entertain and decide the writ application. The learned Single Judge by the impugned order dated 1-3-2001 in CWJC No. 9616 of 1999 held that no part of cause of action has arisen within the territorial jurisdiction of this Court and accordingly dismissed the writ application for want of territorial jurisdiction.
2. The facts giving rise to the present appeal are that the appellant’ was enrolled in the Bihar Regiment on 26th November, 1997 and taken on strength as a Sepoy in this unit on 9th November, 1998 at Cooch Bihar (West Bengal). During Kargil War (Vijay Operation), the appellant was despatched to participate in the said operation on 20-5-1999 and was moved to Battalik Sector. One of his fellow Sepoy Arvind Kumar Pandey belonging to the district of West Champaran died on 29th May, 1999 during the combat. The appellant was asked to hand over the dead of said Martyr Arvind Kumar Pandey to his parent at his native village and was given a movement order with a direction to return back within the period mentioned in the movement order. The appellant escorted the dead body and finally the dead body was cremated. The appellant though asked to return back to the unit after expiry of temporary duty, did not appear. His whereabouts were not known and thereafter a telegram was sent to him to report on duty and he joined the duty on 22nd July, 1999. A decision was taken to initiate summary Court Martial proceeding for his absence under Section 39(a) of the Army Act, 1950 and the appellant participated in the said proceeding and put his signature on the relevant documents. Thereafter, punishment of dismissal was awarded. On 26th July, 1999 in presence of all the Jawans of the Unit, he was informed that he has been dismissed from service and the relevant documents including warrant dated 26th July, 1999, from Jammu Tawi to village home was also given to him. Subsequently, a letter dated 26th July, 1999 was also sent to the mother of the appellant informing her about the dismissal from service of her son. A copy of which has been annexed as Annexure-5 to the writ application.
3. The appellant filed the said writ application challenging the order of dismissal on several grounds. It is not necessary to state the same for the reasons that the only question involved in this appeal is as to whether this Court has territorial jurisdiction to entertain the writ application or not.
4. A counter-affidavit had been filed on behalf of the respondents in the writ application in which it was stated that the order of dismissal was passed in presence of the appellant at Battalik where the Unit was in operation. A letter sent to the mother of the appellant was only for the purpose of information to the next of his kin which is being done in a routine manner to keep the family members duly informed of such development, so that the appellant would not indulge in any mischief after returning back to home. Thus, no cause of action has arisen within the territorial jurisdiction of this Court.
5. The learned Single Judge after hearing the parties, as stated above, held that this Court has no territorial jurisdiction to entertain the writ application.
6. Under Article 226 of the Constitution of India as it stood prior to insertion of Clause 1-A by 15th Amendment Act, 1963, there were two limitations in exercise of power by the High Court. One was that the power was to be exercised throughout the territory in which the High Court exercises its jurisdiction and the other was that the person or the authority to whom writ can be issued must reside within the territory subject to jurisdiction of the High Court. In other words, the High Court was not empowered to issue writ beyond the territory subject to jurisdiction and to the persons who have neither their residence or location within the said territory. Clause 1-A was inserted by 15th Amendment, 1963, conferring power on the High Court to entertain any petition under Article 226 of the Constitution of India if the cause of action arisen wholly or in part in its jurisdiction. The said clause was re-numbered as Clause (2) of Article 226. Thus, the High Court can issue writ against a person or authority who resides within the territorial jurisdiction of the High Court or the cause of action or part of cause of action has arisen within the territorial jurisdiction of the High Court.
7. Cause of action means the bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. The law is well settled that to decide the question as to whether the cause of action has arisen within the territorial jurisdiction of a Court or not, the Court must take into consideration the facts asserted/pleaded in the plaint/ petition. There could be no inquiry about the correctness or truth of the assertions made. The question has to be decided on the basis of the assertion without taking into consideration the .. other version pleaded by the opposite party. The question as to whether the cause of action or part cause of action has arisen with a view to deciding the question of territorial jurisdiction of the Court, no fixed or abstract formula can be laid down. It depends upon the facts and circumstances of each case and the nature of grievance made.
8. The Apex Court in the case of Oil and Natural Gas Commission v. Utpal Kumar Basu and Ors. , held as follows in paragraph 6 of the judgment.
Therefore, in determining the objection of lack of territorial jurisdiction, the Court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an Inquiry as to the correctness or otherwise of the said facts. In other words, the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition.
9. In the present case, we are concerned with regard to dismissal matter and as such it has to be considered as to when the order of dismissal became effective. The order of dismissal becomes effective only when it is either communicated or published or made known to the person concerned. This question was considered by the Apex Court in the case of State of Punjab v. Amar Singh’ , and it was held that unless the order is communicated or published to the officer concerned, the order of dismissal does not become effective. Mere passing of the order is not sufficient to make the order effective. Taking the same view, it gives rise to several complications, such as, what would be the orders or decision taken by the authorities after passing the order of dismissal but before communication of the same, whether the officer is entitled to payment of salary after the order is passed or before it was communicated to him. It is apt to refer paragraph 11 of the said judgment.
The first question which has been raised before us by Mr. Bishan Naraih 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 Narain’s argument. It is plain that the mere passing of an order on dismissal would not be effective unless it is published or 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 Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may feel 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 inquiry, 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 officer; 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.
10. So far as the order of suspension is concerned, it takes effect from the date of communication and not from the date of actual receipt. This question was considered by the Apex Court in the case of State of Punjab v. Khemi Ram , and it was held that in case of suspension, once an order is issued and it is sent out to the Government servant concerned, it must be held to have been communicated to him, no matter when he actually received it. In paragraph 16 of the said judgment, it was, however, held that in case of dismissal actually knowledge by employee may perhaps become necessary because of the consequences but that will not be the situation in case of suspension as after the order of suspension was passed, there was no question of his doing any act or passing any order which is likely to be challenged. Thus, the settled law is that in case of order of dismissal, the order becomes effective when it is communicated, published or known to the person concerned.
11. In the present case, in paragraph 21 of the writ application, the appellant has stated that after the conclusion of the summary Court martial proceeding at Battalik, he was orally informed on 26-7-1999 that he has been dismissed from service and he should proceed to his home, but no order of dismissal was served on him and all the articles as handed over to him by the Army were requested to be returned and it had been so returned. In paragraph 22 of the writ application, he has stated that thereafter he returned to his native village and thereafter letter dated 26-7-1999 was sent addressing to his mother, a copy of which has been annexed as Annexure-5 to the writ application and on that assertion, the writ application has been filed in this Court.
12. The learned Counsel for the appellant submitted that as the order of dismissal addressed to his mother was sent to his village home in Bihar and the order of dismissal becomes effective only when it is communicated to the person concerned and the communication was made at his village home, the part cause of action has arisen within the territorial jurisdiction of this Court. In other words, he submitted that the notice informing about the order of dismissal is integral part of cause of action and as the same was received within the jurisdiction of this Court, then the writ is maintainable.
13. The learned Counsel appearing for the respondents/Union of India on the other hand submitted that summary Court Martial proceeding, according to averments in the writ application which is only material to be looked into, was conducted in presence of the appellant and his own assertion is that after conclusion of the said proceeding, he was informed about his dismissal from service and was asked to go to his village home and as such the order of dismissal became effective when it was known to him while he was posted at Battalik. Thus, the order of dismissal has become effective, the moment the appellant knew about the same. Thereafter, sending a notice informing the mother of the appellant about the dismissal of the appellant from service is only a formal matter as the same does not form integral part of cause of action and as such no cause of action has arisen within the territorial jurisdiction of this Court.
14. As stated above, in the case of State of Punjab, (supra), the Apex Court has held that the order of dismissal cannot be effective unless the officer concerned knows about the said order. In the present case.own averment of the appellant shows that he has knowledge of the order of dismissal Para 21 of the writ application), at Battalik itself. Further assertion made by the appellant in the writ application shows that he was asked to go to village home after depositing the articles supplied by the Army. In such a situation, even if the averments made in the counter-affidavit filed by the respondent in the writ application to the effect that the order of dismissal was passed in presence of the appellant and he had also signed on the proceeding is not taken into consideration, the material on record is sufficient to show that the order of dismissal became effective at the Battalik itself as the order of dismissal was communicated and known to the appellant at that place which does not fail within the jurisdiction of this Court. Subsequent issuance of notice to the mother of the appellant informing about the order of dismissal from service of .the appellant is not an integral part of the cause of action giving jurisdiction to this Court to entertain and decide the matter.
15. The learned Counsel for the appellant relied upon two decisions in support of his submission, one of the Apex Court in the case of Oil and Natural Gas Commission and other of a Division Bench of this Court in the case of Brig. Ashok Malhotra v. The Union of India and Ors. 1997(2) PLJR 595. None of the aforesaid two cases supports the submissions advanced on behalf of the appellant.
16. In the case of Oil and Natural Gas Commission, (supra), the Apex Courtheld that the cause of action has to be decided with reference to the averments made in the petition as stated above. In that case, Engineers India Ltd. (EIL), acting as consultants for Oil and Natural Gas Commission (QNGC), issued an advertisement in leading newspapers of the country inviting tenders for setting up of a Kerosene Recovery Processing Unit at ONGC’s Hazira Complex in Gujarat. The head office of the commission was at New Delhi. The NICCO, having its registered office in Calcutta, read and became aware of the tender notice and submitted tenders and made correspondences with the EIL from Calcutta and sent a fax message and received reply thereto from the EIL. The Apex Court held that the reading of advertisement at Calcutta, submitting offer from Calcutta and making representation from that place would neither constitute an integral part of cause of action nor sending a fax message from Calcutta and receiving reply from New Delhi would constitute an integral part of the cause of action.
17. So far as the case of Brig. Ashok Malhotra (supra) is concerned, in that case, it was found that the order of supersession was passed when the writ petitioner was posted as Commander of Bihar and Orissa Sub-area, Danapur Cantonments and the same was also received while he was posted at Danapur and it was held by this Court that the supersession of the appellant cannot be said to have become complete the moment when the decision was taken and the order in that behalf was issued. It became effective when it was served upon the petitioner at Danapur. It was held triat the cause of action arose at Danapur which falls within the jurisdiction of this Court.
18. In the present case, as stated above, the appellant has already knowledge of the order of dismissal at Battalik itself and, as such, the order of dismissal has already taken effect and subsequent notice sent to his mother does not form integral part of cause of action and, as such, no part of cause of action has arisen within the territorial jurisdiction of this Court.
19. Accordingly, we fully agree with the view taken by the learned Single Judge. The appeal is dismissed for want of territorial jurisdiction.
