F. John Chelladurai vs The Director-General, The Chief Engineer, Vartak Project and The Chief Engineer, Yatrick Project

Mishra, J.—Petitioner herein has challenged the order of the second Respondent herein as confirmed by the first Respondent demoting him from the post of Superintendent E/M. Grade I for a specified period of five years and in case found fit in Superintendent E/M Grade II, to which Grade he has been demoted, to promote him again. Petitioner, who was initially appointed as Superintendent, E/M. Grade II in December 1973 and was made permanent in the said cadre, was promoted as Supdt., E/M. Grade I on 4.7.1977. On 2.2.1980, however, he was served with a suspension order in a proceeding by the second Respondent herein and thereafter subjected to two charges; viz.

That the said G/153 955 Supdt. E/M 1 F. John Chelladurai while working in Eastern Base Workshop (GREF) during August-December 1979 associated himself with an illegal and unrecognised organisation called All India Border Roads Employees Association as its Office Bearer.

That the said G/153955 of Supdt., E/M 1F. John Chelladurai while working in Eastern Base workshop (GREF) wrote a letter to one L.D.C Krishnan using insubordinate and intemperate language against his superiors.

Petitioner submitted a written statement denying the allegations. It is said, some sort of enquiry was held thereafter, which, according to the Petitioner was not fair, but on conclusion of the enquiry, he was subjected to the impugned order.

In the first return filed before this Court, Respondents have stated that Petitioner was subjected to aforementioned charges and after enquiry he has been found guilty and liable to a major punishment, i.e. reduction in rank in service. It is also stated therein that the writ petition is not maintainable since Union of India has not been impleaded as a Respondent. When the case was first heard by me, I noticed the aforementioned technical objection and exercising this Court''s discretion, I ordered on 30.6.1994 as follows:

Objection as to the defect of party has been raised on behalf of the Respondents. The same, however, should not after such a long lapse of time, be taken as a ground to reject the writ petition without affording opportunity to the Petitioner to add the necessary party. The latter course alone in my opinion shall be just and proper. The Petitioner is accordingly permitted to add Union of India as represented in the proper Ministry as a party/Respondent in the instant case. Mr. C. Krishnan, Additional Central Government Standing Counsel accepts notice on behalf of the Union of India.

Since contention as to the validity of the enquiry are involved, the records of the case may be necessary. Learned Counsel for the Respondents has pointed out that the impugned actions are all connected with the records in the office of the Border Roads in Assam as well as in the Head-Quarters at Delhi. Since Records are necessary, as prayed for one month time is granted. Put up after one month.

An additional Counter affidavit has been filed on behalf of the Respondents thereafter stating inter alia that Petitioner is governed by the Army Act, so far as it relates to disciplinary purposes and for other service conditions the Petitioner is governed by CCS (CCA) Rules. Respondents placed reliance on Supplementary Statutory Rules and Orders Nos. 329 & 330 of 1960, issued under the Army Act, 1950 and published in Gazette Notification dated 8.10.1960. Besides the above, in this affidavit filed before this Court after almost a decade of the admission of the writ petition, for the time it is stated the cause of action arose on 30th July, 1980 when the reversion order was received by the Petitioner on the said date of (Tezpur).

Further his appeal to the Department was rejected on 29.8.93 and received by him at Andamans. Hence this Court has no jurisdiction and this Writ petition is liable to be dismissed.

As noticed by me above, the only technical objection to the maintainability of the writ petition in the original counter filed on behalf of the Respondents was that the petition suffered from a defect, of party inasmuch as the Union of India had not been impleaded as a Respondent in the writ petition. This objection is based on the fact that the office to which the Petitioner belonged while in service was under the control of the Union of India and it constituted a service under the State, known as Union of India. Learned Counsel for the Respondents heavily relied upon the said objection and referred more than once to Article 300 of the Constitution of India, wherein it is stated that the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by the Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to then-respective affairs in the like cases as the Dominion of India and the corresponding provinces or the corresponding Indian States might have sued or been sued, if this Constitution had not been enacted. This Article, as has been pointed out by the Supreme Court in State of Punjab Vs. Okara Grain Buyers Syndicate Ltd. and Others, merely says that the State can sue or be sued as a jurisdic personality arid it does not, as a matter of course, give rise to a cause of action of any kind, if arisen on account of any conduct or act of any of its offices to sue the Union of India. The sheet anchor, however, of the contention of the Learned Counsel for the Respondents is that the defect of party, as in the instant case, is fatal to the cause as it is not maintainable. In the case of Shri Ranjeet Mal Vs. General Manager, Northern Railway, Baroda House, New Delhi and Another, the Supreme Court has considered the case of an employee of the Northern Railway, who was removed from service and whose appeal against the order of removal was rejected by the General Manager of the Northern Railway, and said as follows:

It cannot be disputed that the Appellant was a servant of the Union. It is equally indisputable that any order of removal is removal from service of the Union. The Appellant challenged that order. Any order which can be passed by any court would have to be enforced against the Union. The General Manager or any other Authority acting in the Railway Administration is as such a servant of the Union as the Appellant was in the present case.

The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India and not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court.

He has brought to my notice that following the above judgment, this Court has dismissed W.P. No. 9580 of 1984 (Krishna Vel v. Asst. Salt Commissioner, Tuticorin and Ors.) on 8.4.1994 holding the point in favour of the Union of India and against the Petitioner. He has also drawn my attention to the Bench decision of this Court a Appeal No. 98 of 1975 dated 19.6.1979 id which case also a similar view has been taken.

The law, as to who are necessary or proper parties to a proceeding is well settled. Necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made, but whose presence is necessary for a complete and final decision on the question involved in the proceeding. Speaking, however, in the case in Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, the Supreme Court has pointed out that in a writ of certiorari not only the Trubunal or the Authority, whose order is sought to be quashed, but also the parties in whose favour the said order is issued, are necessary parties; and added;

But it is in the discretion of the Court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party the writ or an application filed at the instance of such proper party.

The underlying principle, according to the Supreme Court, in the said judgment is that it would be against all principles of natural justice to make an order adverse to them behind their back; and any order so made could not be an effective one. Since necessary parties were not before it, the High Court, had dismissed the writ petition. The Supreme Court observed:

He (Petitioner) did not file any application before the High Court for impleading them as Respondents. In the circumstances, the petition filed by him was incompetent and was rightly rejected.

That order was made on July 8, 1962, and the SLP was filed on July 18, 1962. Even in the SLP the said two parties were not impleaded. Learned Counsel for the Appellant suggests that this Court may at this very late stage direct them to be made parties and remand the matter to the High Court for disposal. This request, is belated and cannot, therefore, be granted. In this view it is not necessary to express our opinion on the other question raised.

In Murari Mohan Deb Vs. Secretary to The Government of India and Others, , a Government employee, who was compulsorily retired challenged the order without impleading the Union of India, but impleaded instead Secretary to the Government of India, the Supreme Court considered the objection of defect of party that Union of India had not been impleaded and in that situation observed as follows:

Mr. Abdul Khader fairly stated that it is difficult to support the judgment of the learned Judicial Commissioner that in the absence of Union of India being impleaded as a party, the petition as constituted was incompetent. We have not been able to appreciate why the learned Judicial Commissioner should have taken upon himself to raise this untenable contention even though the Respondents did not raise such a contention. Respondent No. 1 is shown to be the Secretary to the Government of India, Ministry of Home Affairs. If there was technical error in the draftsmanship of the petition by a lawer, a forester a Class IV low grade servant should not have been made to suffer. An oral request to correct the description of the first Respondent would have satisfied the procedural requirement. By raising and accepting such a contention, after a lapse of six years, the law is brought into ridicule. The court could have conveniently read the cause title as Government of India which means Union of India through the Secretary, Ministry of Home Affairs instead of the description set out in the writ petition and this very petition would be competent by any standard. The contention is all the more objectionable for the additional reason that the appointing authority of the Appellant, the Chief Commissioner of the Government of Tripura as well as the Chief Forest Officer who passed the impugned order were impleaded and they represented the administration of Tripura Government as well as the concerned Officers. Therefore, not only the petition as drawn lip was competent but no bone of contention could be taken about its competence. Mr. Abdul Khader, Learned Counsel for the Government of Tripura, rightly did not press this point.

In Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, the Supreme Court once again considered how the Court may proceed in a case where large number of necessary parties were not impleaded and observed as follows:

The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh''s case. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of non-joinder of necessary parties. The only Respondents to the Sangh''s petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties - not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as Respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as Respondents or at least by some of them being before it as Respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh''s writ petition without insisting upon the reserve pool teachers being made Respondents to that writ petition, or at least some of them being made Respondents in a representative capacity, and had the Petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary Parties.

The above view of the Supreme Court is an extension to a writ proceeding of what is given to a court exercising Ordinary Civil Jurisdiction u/s 152, Code of Civil Procedure, read with Order I, Rule 10 thereof. Where a suit has been instituted in the name of the wrong person as Plaintiff or where it is doubtful whether it has been instituted in the name of the right Plaintiff, the Court may at any stage of the suit is satisfied that the suit has been instituted through a bonafide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as Plaintiff upon such terms as Court thinks just. this Court may at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant be struck out and that the name of any person, who ought to nave been joined, whether as Plaintiff or Defendant or whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon a settled question involved in the suit, be added. In short, thus while exercising its Writ Jurisdiction the Court has the discretion to add a necessary party or a proper party and for the said purpose the Court can act either on the application of either party or suo motu. All that the Court, however, will keep in mind must conform to the requirement of justice between the parties and considerations in this behalf must be just and proper. Ordinarily, a Court will be reluctant to reject any action on the ground of defect of party without affording to the Petitioner opportunity to add the party.

Learned Counsel for the Petitioner has, however, found something different from, the ordinary ruling in the case of Union of India and wanted to read something more than what the judgments of the Supreme Court have indicated in the cases of defect of party, i.e. Union of India is a necessary party and it is not impleaded. It is not the case of the Respondents that the Petitioner has not impleaded the Head of the Department, that is the Director General of Border Roads, Kashmir House, D.H.Q.P.O., New Delhi. It is also not the case of the Respondents that while taking any action against the Petitioner, the first Respondent (Director General) was in any way not representing with full authority the Union of India. It will, in my opinion, not be proper in such a case not to take notice of the defect in the instant case, as the Supreme Court had considered the defect in the case of Murali Mohan v. Secretary, Government of India (supra), and held that it is not such a vital defect that the writ petition should be dismissed in limine, after more than a decade of its having been admitted to hearing, fn any case, the reason of the defect of party, as stated by the Supreme Court for dismissing any petition in limine is that it will be against the principles of natural justice that any order is passed in the absence of a necessary party, which order would have an adverse effect. I have taken notice of this aspect in my order dated 30.6.1994, quoted above, and thus defect, if any, has stood rectified. The view that I have taken thus in no way conflicts with the requirement that the Government of India, the employer of the Petitioner, has to be sued and that when the Government of India, the employer of the Petitioner, has to be sued and that when the Government of India, is sued, it is sued in the name of Union of India.

Before I take up the only other serious objection as to the cause of action of the instant petition for the purpose of exercise of power under Article 226 of the Constitution of India by this Court, I may take notice of the case on merits. Petitioner, it is stated, is an employee under the Union of India. Although it is stated in the supplemental Counter affidavit that for the purposes of disciplinary matters, the Petitioner is governed by the Army Act, it is not stated anywhere that the Petitioner has not been holding a civil post, as contemplated under Article 311 of the Constitution of India. He being an employee holding a Civil post under the Union of India, he would not be dismissed or removed/or reduced in rank by any authority subordinate to that by which he was appointed, and without an enquiry in which he had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Even if there is a formal compliance of the requirements as contemplated under Article 311 of the Constitution, the disciplinary authority or any other authority under law cannot treat a government employee arbitrarily and cannot subject such an employee to his whims and caprices. By virtue of his status, any employee of the Government shall be entitled to the protection Under Articles 14 and 16(1) of the Constitution. The two charges against the Petitioner hardly suggest that the Petitioner violated any of the rules of conduct of a Civil Servant or any of the Rules under the Army Act, if at all Army Act inapplicable. Petitioner was never informed how his joining any Association constituted a misconduct, or how by writing the letters, which are on the record of the instant proceedings, he demonstrated any act of insubordination or misconduct or indiscipline. Merely because the Respondents have chosen to call the aforementioned acts of the Petitioner, which formed the basis of the charges against the Petitioner, it is not possible for any person to hold that the Petitioner committed any act of insubordination, misconduct or indiscipline.

The statutory appeal, it is conceded, of the Petitioner has been disposed of by an order which reads as follows:

It has been intimated by HQ DGBR vide their letter No. 69546/545/DGBR/E1E dated 29 August 83 that the appeal dated 29 August 80 submitted by Shri F. John Chelladurai, G. 153955 Superintendent EM. Grade -II, while service in project vartak was put up to the competent authority, after due consideration of the case, has rejected the appeal.

The rule that the appellate or revisional authority should make a speaking order was recognised first in the case of Bharat Raja Vs. The Union of India (UOI) and Others, and firmly stated by the Supreme Court in the case of The Siemens Engineering and Manufacturing Co. of India Ltd. Vs. The Union of India (UOI) and Another, . When attempt was made, however, to extend this rule as the third principle of natural justice, besides the rules of affording the opportunity of being heard and that no person should be a judge in his own cause from the Public law field like the one in hand to the private law field, and it was argued that arbitrators also are obliged to give a speaking order, a Constitution Bench of the Supreme Court in the case of AIR 1990 1426 (SC) has stated the law as follows:

It is no doubt true that in the decisions pertaining to administrative law, this Court in some case has observed that the giving of reasons in an administrative decision is a rule of natural justice by an extension of the prevailing rule.

It would be in the interest of the world of commerce that the said rule is confined to the area of Administrative law. We do appreciate the contention urged on behalf of the parties who contend that it should be made obligatory on the part of the arbitrator to give reasons for the award, that there is no justification to leave the small area covered by the law of arbitration out of the general rule that the decision of every Judicial and quasi Judicial body should be supported by reasons. But at the same time it has to be borne in mind that what applies generally to settlement of disputes by authorities governed by Public law need not be extended to all case arising under private law such as those arising under the law of arbitration which is intended for settlement of private disputes.

The Constitution Bench thus has affirmed that every Judicial and quasi Judicial order effecting a Civil right of a person, which is the domain of Administrative law, has to be a speaking order and if it is not a speaking order, it is in the teeth of one of the most important principles of natural justice. Whatever little doubt we could still entertain about it is removed by another judgment of the Supreme Court in the case of S.N. Mukherjee Vs. Union of India, where it has been candidly stated that unless specifically barred by law, all decisions by administrative authorities must be supported by reasons. Mukherjee''s case, (Supra) had arisen from a certain finding and imposition of sentence by General Court Martial under the provisions of the Army Act and rules made thereunder. The Supreme Court has elaborately discussed the principles and stated as follows:

Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or Supervisory Authority, But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions- making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of taw. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.

Having considered the rationable for the requirement to record the reasons for the decision of an administrative authority exercising quasi-judicial functions we may now examine the legal basis for imposing this obligation. While considering this aspect the Donoughmore Committee observed that it may well be argued that there is a third principle of natural justice, namely that a party is entitled to know the reason for the decision, be it Judicial or quasi Judicial, The committee expressed the opinion that "there are some cases where the refusal to give grounds for a decision may be plainly unfair; and this may be so, even when the decision is final and no further proceedings are open to the disappointed party by way of appeal or otherwise" and that "where further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive them of the opportunity." (p.80) Prof. H.W.R. Wade has also expressed the view that "natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man''s sense of justice." (see Wade, Administrative Law, 6th Edn. P. 548). In The Siemens Engineering and Manufacturing Co. of India Ltd. Vs. The Union of India (UOI) and Another, this Court has taken the same view when it observed that "the rule requiring reasons to be given in support of an order is, like the principles of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process." This decision proceeds on the basis that the two well-known principles of natural justice, namely (i) that no man should be a judge in his own cause and (ii) that no person should be judged without a hearing, are not exhaustive and that in addition to these two principles there may be rules which seek to ensure fairness in the process of decision-making and can be regarded as part of the principles of natural justice. This view is in consonance with the law laid down by this Court in A.K. Kraipak and Others Vs. Union of India (UOI) and Others, wherein it has been held:

The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (i) no one shall be a judge in his own cause (Nem dect esse Judex propria causa) and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. (pp.468-69) of SCR : at p.p. 156-157 of A.I.R.

A similar trend is discernible in the decisions of English courts wherein it has been held that natural justice demands that the decision should be based on some evidence of probative value. See R. v. Deputy Industrial Injuries Commissioner Ex. P. Moore (1965) 1 QB 456 : Mohan v. Air New Zealand Ltd. 1984 AC 808.

The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action". As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect as express provision to the effect as those contained in the Administrative Procedure Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a purpose would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case.

For the reasons aforesaid, it must be concluded that in except in case where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision.

As has been pointed out by the Supreme Court, except in cases where the requirement has been dispensed with expressly or by necessary implication for the reason that the public interest underlying such a provision outweighs the salutary purpose served by the requirement to record the reasons, the administrative authority exercising judicial or quasi - judicial functions is required to record the reasons for its decision. The appellate authority has obviously not done so. There has been no attempt before me to suggest that there has been any other communication to the Petitioner or that any other order has existed, which the Petitioner could ask for and thus know the reasons why the appellate authority has dismissed the appeal. A speaking order is one which gives in short the contention and the reason why the contentions of the Appellant are not accepted.

I do appreciate the ingenuity of the Learned Counsel for the Respondents, who, it seems, has realised the difficulties in supporting such an outrageously illegal appellate order and found out another technical objection to the maintainability of the instant petition. The objection was not to be found in the first counter affidavit filed on behalf of the Respondents. To maintain that there is no cause of action available to the Petitioner within the jurisdiction of this Court, the Respondents have stated, as a fact, that the Petitioner was subjected to the disciplinary proceeding and served with the order of reversion at Tezpur (it is not stated in which State of the country and within the jurisdiction of which court) and the appellate order was passed at Andamans as Andamans is a city or town; and to contend that Union of India, cannot be treated as an authority within the territorial Jurisdiction of the Court, reliance is placed upon a judgment of the Supreme Court in the case of Lt. Col. Khajoor Singh Vs. The Union of India and Another, . The Supreme Court has in the said judgment observed that it is wrong to introduce in Article 226, as it existed then, the concept of the place where the order passed has effect, in order to determine the jurisdiction of the High Court, which can give relief under Article 226, and held that the words "throughout the territories in relation to which it exercise jurisdiction"; "to issue to any person or authority including in appropriate cases any Government within those territories"--should be read to mean that the person or authority to whom the High Court is empowered to issue writs must be within those territories, which clearly implies that it should be the seat of the Government which should determine its locale and thus the territorial jurisdiction of the High Court. It is important, however, to notice that the Supreme Court categorically in the said judgment recorded that Article 226, as it stood then, did not refer anywhere to the accrual of cause of action and to the jurisdiction of the High Court depending on the place where the cause of action accrued. By the 15th Constitutional Amendment Act, followed by 42nd Amendment Act, the power to issue writs, direction and orders to any Government, authority or person is given to the High Court in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power.

As I have already noticed, it is difficult for any reasonable person to find any merit in the action of the Respondents against the Petitioner of imposition of a major penalty for the charges aforementioned and in any case the appellate authority has completely ignored one of the most important principles of natural justice in , dismissing the Petitioner''s appeal, Petitioner filed the instant petition, because in the order signed by the Chief Engineer, Project Vartak, dated 29.7.1980 the Petitioner has been punished with reduction in rank. The address is C/o 99 A.P.O., that is the order has been made at 99 A.P.O., that is the order has been made at 99 A.P.O the appellate order also gives the address: C/O 99 APO. The Respondents have not come forward to say that the Petitioner knew that 99 APO is not to be found within the territorial jurisdiction of this Court and that it is somewhere in the place called Tezpur of somewhere in Andamans. In the documents aforementioned, C/o 99 A.P.O is preceded by the expression ''project Vartak''. In the original counter, the Officer Commanding, who has sworn the Affidavit, has given his address as "Yatrik base Deport (Gref), Madras". There can bono doubt that Court will have no jurisdiction to issue any writ, if cause of action or any part thereof has not arisen within its territorial jurisdiction. In M/s. New Horizons Limited and another Vs. Union of India and others, a Division Bench of the Delhi High Court has observed as follows:

An argument was raised by the Respondents that this Court had no jurisdiction to try the present petition. In support of this reference was made to a decision of the Supreme Court in State of Rajasthan and Others Vs. Swaika Properties and Another, . In this case State of Rajasthan and notice was served upon the Respondent, the owner, in the State of West Bengal, The Supreme Court said that the Calcutta High Court would not have jurisdiction in the matter.

This judgment is of no relevance to us. Here the Respondents 1 and 2 are in Delhi and so is Respondent No. 4. The third Respondent is the General Manager, Telecom District, Hyderabad, a department of the Central Government in the Ministry of Communications. We find this Court will, therefore, have jurisdiction in the matter. We could certainly have directed the Petitioners to approach the Andhra Pradesh High Court which also has jurisdiction in the matter since the telephone directories...were required for Hyderabad Telecom Direct and the contract was to be entered there and the records were also maintained there in Hyderabad. We could decline to exercise jurisdiction under Article 226 of the Constitution in such a manner in spite of the fact of our having jurisdiction in the matter. However, since the arguments were addressed at length we do not think any useful purpose will be served by sending the Petitioners to Hyderabad.

It is extremely doubtful in the instant case that Respondents have genuine reason to say that no part of the cause of action of the instant case has arisen within the territorial jurisdiction of this. Court. It will be unfair to reject on such a technical ground a petition on the basis of an Objection which has been brought nearly after a decade of the filing of the instant petition and that too when the hearing had started. Objection as to jurisdiction, it is well settled, has to be raised at the first instance and that too with lull disclosure of facts. Respondents have neither chosen to raise this objection at the first instance nor chosen to disclose the full facts. Respondents must know that rejection of the instant petition on the ground of maintainability for want of jurisdiction will not be a denial or remedy to the Petitioner. Petitioner will be entitled to go before the proper Court even now and the proper court will be entitled to proceed in accordance with law. But it will be unnecessary harassment to all concerned, particularly when the Union of India is fully represented before me, if the petition is rejected on the ground of jurisdiction.

Before I close this aspect, I am tempted to state that cause of action for the purpose of jurisdiction of a court has been considered more than once by this Court and in one of the two judgments, while deciding when a leave to sue should be granted (Bench decision), this Court has pointed out that cause of action does not and is not intended to appreciate every fact which should be proved in evidence; it is only material facts which must be proved. The distinction between facts, which are relevant and material and those which are incidental and not material, is sometimes not easy to be drawn. The said distinction is nevertheless important for the purpose of deciding which facts constitute the cause of action and which are not included in it. See K. Murugesan v. Seethalakshmi 1992 (1) L.W. 277. The Supreme Court in the case of State of Rajasthan and Others Vs. Swaika Properties and Another, has said:

Cause of action is a fact, which if traversed, 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 law applicable to them, gives the Plaintiff a right is relief against the Defendant.

If there are no proper pleadings in this behalf and if this Court has been placed in such a predicament, to say, as above, that it is difficult to throw the Petitioner out of Court on such a belated objection as to the cause of action by the Respondents, they have to blame themselves for having not brought full facts on record in this behalf.

On the facts as above, I am inclined to interfere with the action against the Petitioner by the Respondents and remit the case to the appellate authority for hearing in accordance with law. Since the appellate authority shall have the power to modify the charges and give a fresh opportunity of hearing to the Petitioner, I am inclined to observe that any observation made in the instant order on the merits of the charges shall not bind him (appellate authority). The writ petition is accordingly allowed. The order of the appellate authority in proceedings No. 69546/545/DGBR/E1E dated 29.8.1983 is quashed and the same is remitted to the appellate authority for fresh hearing and disposal in accordance with law. There will be no order as to costs.