Shri Moti Lal Gupta vs Triveni Structurals Ltd. and Others

K.N. Saikia, J.—The Petitioner impugns the order dated 19-3-82 (texture II to the petition) issued by the Personnel Manager (sic) Structurals Limited, Naini, Allahabad, Respondent No. 3, (sic)ating his services with immediate effect allowing him three (sic)ns'' pay in lieu, of notice. The Petitioner was promoted effect from 1.9.80 and until further orders from his post (sic)rection Engineer to the post of Sr. Erection Engineer and put on probation for a period of one year in the first instance, (sic)h could be extended upto maximum period of 18 months, (sic) Order No. TSA/PERS/PF-10207 dated 7-10-1980 (Annexure (sic) the petition). While he was serving in that promted post, (sic)8.11.1981 he received a notice to give his detailed explanation (sic)thin a week of receipt of the notice against the finding of his Sen(sic) officers as given in the said notice (Annexure-III to the petition). (sic) instances referred to in the notice happened at Salakati in Assam where the Petitioner was posted at the relevant time. The Petitioner submitted his explanation dated 17.12.81, which (sic)ever, was not found satisfactory and the General Manager (sic)echnical) wrote thereon a confidential report dated 2.3.82 refering to the irregularities allegedly committed by the Petitioner serving that the company could not afford to have such sons with doubtful integrity and complete disregard for the (sic)terest of the company and suggested that: "He may be asked leave the Company as per rules of the Company". (vide Annexure IV to the petition). This was followed by the impugned order dated 19.3.82 as already stated. The Petitioner near after filed this writ petition on 2.6.82 in this High Court. The Petitioner also filed a supplementary affidavit on 3.6.82 bringing in two annexures, namely Annexures ''V'' and ''VI''.

The petition is resisted by the Respondents by filing an affidavit-in-opposition on 22.9.82 to which the Petitioner filed affidavit-in-reply on 5.9.84 The Petitioner also filed another affidavit dated 16.6.86 stating that he had not filed any other writ petition against the impugned order.

Mr. G.K. Talukdar, the learned Counsel for the Respondents, takes two preliminary objections, namely, (i) this Court has no jurisdiction because the Petitioner in no way comes, within the jurisdiction of this Court; and (ii) the Respondent No. 1 not being an authority under Article 12 of the Constitution, no writ can be issued against the Company and the Petitioner has his remedy by way of suit. Mr. Talukdar submits that the Respondent company''s registered office is situate at Naini, Allahabad, in U.P. The Petitioner served the Respondent company at the relevant time as Sr. Election Engineers at Naini, Allahabad and this address is given in the petition itself. The letter of termination (Annexure II) was issued from the company''s registered Office and Works at Naini, Allahabad. The letter makes do reference and shows no nexus to Salakati in Assam. The Petitioner was transferred from Salakati to Allahabad on 2.11.81; he joined his post at Allahabad on 9.11.81; and the impugned notice of termination was issued at Allahabad on 19.3.82. Thus Mr. Talukdar submits that the cause of action in the petition arose entirely within the State of U.P. and has no nexus with Assam and consequently this High Court has no jurisdiction to entertain this petition.

Supporting his second objection, Mr. Talukdar submits that the Respondent company is not an authority within Article 12 of the Constitution of India and it being a purely commercial concern in collaboration with the Government of India, is outside the writ jurisdiction under Article 226 of the Constitution of India.

Mr. D.N. Choudhury, the learned Counsel for the Petitioner submits that the cause of action in this case arose at Salakati within Assam, inasmuch as the impugned order of termination is a sequel to the adverse observations against the Petitioner by the superior officers which the Petitioner had to explain but his explanations were not accepted and consequently on the basis of the report of the General Manager (Technical) dated 2.3.82, the Petitioner''s service has been terminated by the impugned order. Cause of action, according to him, will include all these facts and hence part of the cause of action arose in Assam and this Court has jurisdiction to entertain this petition.

ON the second preliminary objection Mr. Choudhury submits that apart from the Government of India owning majority of the shares, the objects for which the Respondent company namely, Triveni Structural Limited, has been incorporated include large number of State functions which the State performs exercise of its sovereign State powers and the rulings of (sic)ay Hasia''s case and Central Inland Water Transport Corporation''s case are applicable and the Respondent company cannot (sic)t be an authority as envisaged in Article 12 of the Constitution of India.

We take up the objection regarding jurisdiction. Under Article 226(1) of the Constitution of India, notwithstanding anything in Article 32, every High Court shall have power, through (sic)t the territories in relation to which it exercises jurisdiction (sic) issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or write including writs in the nature of habeas corpus, manda-(sic)nus, prohibition quo warranto and certiorari, or any of them, or the enforcement of any of the rights conferred by part III and for any other purpose. Under Article 226(2), the power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

If the cause of action arises, wholly or in part, within be territorial jurisdiction of a High Court, it may issue a writ against person or authority resident within the jurisdiction of another High Court. In other words, under the above provision petition under Article 226 can be presented before any of he High Courts: (a) a High Court within whose territorial jurisdiction the person or authority against whom relief is sought resides or is situate; and (b) a High Court within whose jurisdiction the cause of action in respect of which relief is sought under Article 226 has arisen, wholly or in part. Where an impugned order is made by an authority in another State but it becomes effective on service in a State the High Court in that State shall also have jurisdiction as part of the cause of action arose therein. Damomal Kausomal Raisinghani Vs. Union of India and Others, ; L.V. Veeri Chettiar and Another Vs. Sales Tax Officer, Bombay, Where the order of termination of service of a person was made and served outside a State, but only the payment of the amount payable in lieu of the period of notice was made within a State, the High Court of that State cannot have any jurisdiction under Article 226(2) because no part of the cause action of the petition challenging the order of termination arose within that State. M.G. George Vs. Assistant Director, Subsidiary Intelligence Bureau, Kohima, Where the impugned order is made by an authority in another State but it becomes effective on service within a State, the High Court of that State shall also have jurisdiction as part of the cause of action arose therein. Where, though the authority is located outside the jurisdiction of the High Court, the impugned illegal act or order is done or made by an agent or subordinate officer of that authority who is resident within the jurisdiction of the High Court, the Court can proceed against such agent or officer who cannot be heard to say that be is simply obeying the unlawful directions of his superior authority which is located outside the jurisdiction of the High Court. (Musa-liar v. Potti (1955) 2 SCH 1196) . Where however, the order by a subordinate officer within the jurisdiction of the High Court merges in the order or the superior authority which is located outside the jurisdiction, the High Court cannot issue the writ either against the subordinate or the superior authority. Haji Esmail Noor Mohammad and Co. and Others Vs. The Competent Officer, Lucknow and Others,

In the instant case, admittedly, the officer who issued the impugned order was working and residing at Naini, Allahabad where the Head Office and Works of the Respondent company were also situate. The Petitioner was also residing and serving at Naini, Allahabad and the order was sent to him in that address. The apparent tenor of the impugned order indicates no nexus whatever with Assam. It was not passed by any officer working at Salakati. The impugned order, therefore, has no-apparent nexus with any place within the territorial jurisdiction of this High Court. The only question to be decided, therefore, is whether the cause of action, either wholly or in part, can be said to have arisen within the territorial jurisdiction of this High Court. What then is meant by cause of action?

Cause of action means the ground on which an action can be maintained; but often expended to any claim on which a given action is in fact grounded, whether or not legally maintainable. (Mosley and whiteley''s). In the instant case the Petitioner''s case is that the impugned order is a penal order and is the result of what happened at Salakati. It means the fact or combination of fact which give rise to a right of action (Oxoorn''s). Cause of action means the fact or facts which give a person a right to judicial relief, The legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or State of facts which would entitle a party to sustain action and give him right to seek a judicial remedy in this behalf (Black''s).

u/s 20(c) of the CPC subject to the limitations theretofore stated, every suit shall be instituted in a Court within local limits of whose jurisdiction the cause of action, wholly or in part, arises. This, provision is similar to that of Article 226(2) of the Constitution and may be similarly interpreted. According to Mulla (Code of Civil Procedure, Vol. 1, 13th ed. p. 144) "cause of action" means every fact which, if traversed, it would be necessary for the Plaintiff to prove in order to support his right to the judgment of the Court. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved to entitle the Plaintiff to a decree. Everything which if not proved would give the Defendant a right to an immediate judgment must be part of the cause of action. It is in other words, a bundle of essential facts which it is necessary for the Plaintiff to prove before he can succeed in the suit, It has no relation whatever to the defence which may be set up by the Defendant, nor does it depend upon the character of the relief prayed for by tae Plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the Plaintiff asks the Court to arrive at a conclusion in his favour". The cause of action.

Following the above interpretation in the instant case it may be said that if the Petitioner''s defences include any act or event that happened within Assam which resulted in passing of the impugned order, it may be said that part of cause of action arose within Assam, and in that case, this High Court would have jurisdiction to entertain this petition under Article 226 of the Constitution. However, the instant impugned order is one of termination of service. In the matter of termination of service simplicites in terms of conditions of service that question may not arise. If the termination is pursuant to a disciplinary proceeding for some misconduct that occurred in a State the High Court of that State may have jurisdiction in the matter. The question therefore arises, as to whether for the purpose of ascertaining the question of jurisdiction this Court is to look at the apparent tenor of the order, or it could go behind the order to see whether it is a penal order or passed in violation of service rule or principles of natural justice. We are of the view that this Court is to see at least the real nature of the order and that is not a mere cloak, but not beyond that.

Without anything more, it was held in T.R.S. Maniayr. I.R.P. Radio (Private) Ltd. AIR 1968 Mad. 30, that a suit for damages for wrongful termination of service could be filed at the place where the services were terminated. It was held in N.T. Co. v. Monohar AIR 1968 Punjab 514 that a corporation may be sued at a place where its branch office is situate in respect of a cause of action arising at that particular place. If no part of the cause of action arises at the place where the branch office is situate, the mere fact of the Corporation having a branch office will not give the Court of that place jurisdiction to entertain a suit. In T.R.S. Mani (supra) the letter of termination was posted in Calcutta and was received by the addressee at Delhi and it was held that the Delhi Court bad jurisdiction. A corporation includes a company. This interpretation will be applicable to a writ petition under Article 226. Admittedly, the Respondent company had a working branch at Salakati in Assam, But the impugned order was neither issued at nor addressed to Salakati. On the same principle in Brajnan dan Sinha v. Jyoti Narain AIR 1956 SC 75, it was held that a suit by a public servant for setting aside an order of dismissal on the grounds that he had not been given an opportunity of being heard as required under Article 311 of the Constitution could be filed at the place where the order was passed as failure to give an opportunity was part of the cause of action and that must be held to have occurred at the place where the order was passed. In T.R.S, Mani (supra) where A was appointed by B as factory representative, for the purpose of appointing dealers for the sale of I.R.P. Radios, manufacated by B. A''s duties as representative was done at Madras. (sic)was carrying on business at Calcutta. A''s services were (sic)inated by a letter which was posted at Calcutta and was (sic)lved by A at Madras. It was hold that the claim was based (sic)ely on the illegal termination of the service and as the (sic)lnation of A''s service took effect at Madras it followed (sic) a part of the cause of action at least arose within the (sic)sdiction of the Court at Madras. In the instant case the (sic)ougned order was not received at Salakati, and its effect (sic)could not be said to have taken place at Salakati.

There is no provision in Article 226(2) corresponding the explanation to Section 20 CPC which says that a (sic)poration shall be deemed to carry on business at its sole (sic)principal office in India or, in respect of any cause of action arising at any place where it has also subordinate offices at (sic)ch place. The principle will equally be applicable to peti(sic)ons under Article 226. Where cause of action against a corporation arises within the jurisdiction of a Court, it is not (sic)cessary to consider whether the Corporation carries on business or not within its jurisdiction. In Union of India (UOI) and Another Vs. Ladu Lal Jain, interpreting Section 20 Clause (a) and (b) of the CPC approving AIR 1956 Gau (sic) it has been held that the Union of India carries on the (sic)iness of running railways and the Union Government can be (sic)ed in a Court within whose territorial jurisdiction the head-(sic)arter of the Railway run by the Union is situated. In N. (sic) Co. v. Manohar AIR 1968 Punjab 517 it has been held that corporation may be sued at a place where its branch office situated in respect of cause of action arising at that place, (sic)no part of the cause of action arises at the place where the branch office is situated, the mere fact of the corporation (sic)ving a branch office will not give the Court of that place (sic)risdiction to entertain a suit. In Nedungadi Bank Ltd. Vs. Central Bank of India Ltd., relying on AIR 1995 SC 590 and referring to The Commissioner of Income Tax, Bombay South, Bombay Vs. Ogale Glass Works Ltd., Ogale Wadi, it has been held that (sic)no part of the cause of action arises at the place where the branch office is situate, the mere fact of the corporation having (sic)branch office will not give the Court of that place jurisdiction to entertain a suit. Where the suit is instituted at a place where corporation maintains a subordinate office, the Court can not dispense with the requirement that the cause of action must arise at such a place. In Damomal Kausomal Raisinghani Vs. Union of India and Others, where she Petitioner was a resident of Ullas Nagar, aplace situated in the District of Thana of Maharashtra State and the order was made in New Delhi and the effect of the order fell on the Petitioner at Ullas Nagar where he resided, a Division Bench of Bombay High Court held that the High Court could entertain the petition challenging the order. In W.W. Joshi v. State of Bombay AIR 1959 Bom 633 a civil servant was removed from the service and the question arose as to where the cause of action to get the order of removal from service quashed arose, it was held that the cause of action arose at the place where the order of termination of service was made and also the place where the consequences fell on the servant.

In State of Rajasthan and Others Vs. Swaika Properties and Another, where the land acquired was situated in Rajasthan and the notice u/s 52(2) of the Rajasthan Urban (sic)provement Act (35 of 1959) on the owner of the land intimating the State Government''s proposal to acquire the land for public purpose was served on the owner of West Bengal, it was held that the mere service of the notice of acquisition of land situated in the State of Rajasthan on the owner in West-Bengal did not constitute integral part of the cause of action sufficient to invest the Calcutta High Court with jurisdiction to entertain a petition under Article 226 of the Constitution challenging validity of the notification acquiring the land. The notification issued by the State Govt. u/s 52(1) of the Act became effective the moment it was published in the official Gazette as thereupon the notified laud become vested in the State Government free from all encumbrances. It was not necessary to owner to plead the service of notice u/s 52(2) for the grant of appropriate Writ, Direction or Order under Article 226 of the Constitution of India in quashing notification issued by the State Government u/s 52(1) of the Act. The Rule nisi issued by the Calcutta High Court on petition and the ad interim explanatory prohibitory order were accordingly quashed.

Applying the ratio of the above decisions to the facts (sic) the instant case we find that the impugned order is one of (sic)ermination simpliciter and though the Petitioner contends that (sic)is one of punishment for what happened at Salakuti for de-(sic)rmining the question of Jurisdiction we do not go to the ex-(sic)nt of deciding that question. The impugned order was not (sic)erved at Salakati, nor did its effect take place in Assam as the Petitioner was not residing in Assam. Though the Respondent company had a working branch at Salakati, the impugned order was not issued or served there. We, therefore, hold that the cause of action neither wholly, nor partly occurred within the jurisdiction of this High Court, which, therefore has (sic)o territorial jurisdiction to entertain this petition.

We are, however, not oblivious, of the fact that this petition was admitted as far back as on 7.6.82 and the Petitioner in his additional affidavit dated 16.6.80 has clearly stated that he had not filed any other application in any other Court against the impugned order. Mr. Choudhury also submits that the Respondent company is a ''State'' under Article 12 of the Constitution of India Admittedly more than 51% of the shares of the Respondent company are being owned by Central Government. In Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguli, decided on 6.4.86 and reported in 1986 II SVLR(L) 206 referring to Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, International Airport Authorities case, Ajay Hasia''s case and Uttar Pradesh Ware housing''s case, it has been held that the definition of the ''State'' under Article 12 is for the purpose of both Part III and Part IV of the Constitution. If there is an instrumentality or agency of the State which has assumed the garb of a Government company as defined in Section 617 of the Companies Act, it does not follow that it thereby ceases to be an instrumentality or agency f the state. For the purposes of Article 12 one must necessarily see through the corporate veil to ascertain whether behind that veil is the face of an instrumentality or agency of the State. The Respondent company may be nothing but the Government operating behind a corporate veil, carrying out a Government activity and Governmental functions of vital public importance. We have perused the Memorandum and Articles of Association of the Respondent company. A number of Governmental functions are being carried on by it. It may, therefore be held to be ''a State'' for the purposes of Article 12 of the Constitution of India. In Central Water Transport (supra) Clause (i) of Rule 9 of the Service Discipline and Appeal Rules, 1979 of the Central Inland Water Transport Corporation Limited was declared void u/s 23 of the Indian Contract Act, 1872, as being opposed to public policy and was also held to be ultra vires Article 14 of the Constitution of India to the extent that it confers upon the Corporation the right to terminate the employment of a permanent employee by giving him three months'' notice in writing or by paying him the equivalent of three months basic pay and dearness allowance in lieu of such notice.

The impugned order dated 19.3.82 in the instant case was passed in terms of Clause 2(vi) of the Service Terms and Conditions Rules of the Company and also the Petitioners terms and conditions of appointment as contained in the appointment letter dated 6.3.67. The Petitioner''s services were terminated with immediate effect paying him three months'' pay in lieu of the notice period. Clause 2(vi) of Appendix A of the Service Terms and Conditions Rules says; "The Company shall have the right in its absolute discretion and without assigning any reason to terminate your services at any time without notice during the first 12 months of service or during the probationary period whichever is longer and thereafter on giving you three calendar months'' notice in writing or by paying to you in addition to any salary then due to you a sum equal to three month''s salary in lieu of notice at the rate you are then enjoying and similarly you may terminate your services by giving the Company three months'' notice or salary in lieu thereof". The validity of this Rule may, therefore, be vulnerable in view of the decision in Central Inland Water Transport Corporation (supra).

If the Petitioner''s contention that the impugned order is a penal one, is accepted, he has a right of appeal under Rule 19 of the Company''s Discipline and Appeal Rules. Thereunder an employee may appeal against an order imposing a major penalty and the appeal shall lie to the authority specified in column 5 of the schedule. Mr. Choudhury submits that the appeal was to be preferred within one month of the date of the order appealed against through the authority which had passed the order find that the period being long over his appeal may not now be entertained. However, the period of pendency of the writ petition in this High Court may be exempted by the appellate authority if and when the Petitioner files an appeal. Under Rule 22 the Petitioner may also make a representation to the Managing Director or the Head of the office, and under Rule 24 the Board of Directors of the company may also call for the records of any case involving a major penalty. We accordingly leave it open to the Petitioner to resort to the above Rules and we hope that if and when the Petitioner files an appeal or representation the period of pendency of the writ petition before this High Court, namely, from 2.6.82 till to-day shall be exempted.

With the above observation this petition is dismissed. The Rule is discharged. There will be no order as to costs.