Durgesh Kumar Shukla vs Union Of India
2021 Latest Caselaw 6699 MP

                                                           1                           WP-21212-2021
                              The High Court Of Madhya Pradesh
                                         WP-21212-2021
                                     (DURGESH KUMAR SHUKLA Vs UNION OF INDIA AND OTHERS)

                      2
                      Jabalpur, Dated : 23-10-2021
                             Heard through Video Conferencing.
                             Shri Manoj Kumar Sharma and Shri Prashant Sharma, learned counsel
                      for the petitioner.
                             Shri Utkarsh Agrawal, learned counsel for the respondent no.2.

Heard on the question of maintainability.

The case was listed on 20.10.2021 and the counsel for the petitioner has prayed for time to argue the matter on the question of territorial jurisdiction of this court to entertain the writ petition.

It is submitted that although the petitioner was in service of respondent's department and was serving at New Delhi. Due to the recent out break of Covid in the year, 2020 petitioner came back to Bopal, at his native place and is officiating his services form his home town at Bhopal. The impugned order of compulsory retirement was passed on 28.05.2021 and was communicated to the petitioner at Bhopal.

A representation/application to the aforesaid order of compulsory retirement was submitted by the petitioner to the respondent authorities from Bhopal for reconsideration which was duly entertained by the authorities and was rejected vide order dated 13.07.2021 which was communicated to the petitioner at Bhopal. For the purpose of territorial jurisdiction, he has placed reliance upon the judgments passed by the Supreme Court in the case of 1987 MPLJ (32) 396 reported in K.P.Govil, Vs. Jawaharlal Nehru Krishi Vishwavidyalaya wherein Full Bench of this Court has held as under :-

"Held, that the Writ Petition was maintainable before the Bench at Gwalior.The expression in the Presidential Notification

Signature Not dated 28.11.1968 "in respect of cases arising in the Revenue SAN Verified

Digitally signed by SMT SHALINI SINGH LANDGE Date: 2021.10.30 10:32:10 IST 2 WP-21212-2021 Districts of Gwalior, Shivpuri, Datia, Guna, Vidisha (Bhilsa), "Bhind and Morena" means the place or places within the specified revenue districts where the whole or a part of cause of action arises. If the cause of action arises wholly or in part at a place of places within the specific revenue districts, the Gwalior Bench will have jurisdiction. The fact that the order of

appointment was accepted by joining the post at Gwalior would form part of cause of action and it would arise at the place where the order is implemented by joining the post. A part of the cause of action having arisen at Gwalior, the Gwalior Bench had jurisdiction to entertain petition."

He has further placed reliance upon the judgment passed by the Supreme Court in the case of Nawal Kishore Sharma Vs. Union of India and others reported in 2014 (9) SCC 329 wherein Hon'ble Supreme Court has held the petition to be maintainable. Considering the part cause of action arising at a particular place and as in para 17 is held as under :-

"17. We have perused the facts pleaded in the writ petition and the documents relied upon by the appellant. Indisputably, the appellant reported sickness on account of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment.

Finally, the respondent permanently declared the appellant unfit for sea service due to dilated cardiomyopathy (heart muscles disease). As a result, the Shipping Department of the Government of India issued an order on 12.4.2011 cancelling the registration of the appellant as a seaman. A copy of the letter was sent to the appellant at his native place in Bihar where he was staying after he was found medically unfit. It further appears that the appellant sent a representation from his home in the State of Bihar to the respondent claiming disability Signature SAN Not Verified

Digitally signed by SMT SHALINI SINGH LANDGE Date: 2021.10.30 10:32:10 IST 3 WP-21212-2021 compensation. The said representation was replied by the respondent, which was addressed to him on his home address in Gaya, Bihar rejecting his claim for disability compensation. It is further evident that when the appellant was signed off and declared medically unfit, he returned back to his home in the District of Gaya, Bihar and, thereafter, he made all claims and filed representation from his home address at Gaya and those letters and representations were entertained by the respondents and replied and a decision on those representations were communicated to him on his home address in Bihar. Admittedly, appellant was suffering from serious heart muscles disease

(Dilated Cardiomyopathy) and breathing problem which forced him to stay in native place, wherefrom he had been making all correspondence with regard to his disability compensation. Prima facie, therefore, considering all the facts together, a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation" In the case of Shanti Devi @ Shanti Mishra Vs. Union of India and others reported in 2020 (10) SCC 766. The three Judges Bench of Supreme Court has considered the aspect of territorial jurisdiction on the ground of forum conveniences and as held as under :-

"32. As noted above, the learned single Judge has also observed that petitioner ought to have filed the writ petition in Jharkhand High Court where his earlier writ petition was pending. The earlier writ petition which was initially filed in 2006 in Patna High Court was for refund of the amount as noted above. After dismissal of the writ petition by Patna High Court on the ground of lack of territorial jurisdiction, Shri B.N.

Mishra had filed a Writ Petition No.4930 of 2013 in Jharkhand Signature SAN Not Verified

Digitally signed by SMT SHALINI SINGH LANDGE Date: 2021.10.30 10:32:10 IST 4 WP-21212-2021 High Court for the relief which was claimed in Writ Petition No.13955 of 2006. As noted above, the cause of action for filing the Writ Petition No. 5999 of 2014 was entirely different. Stoppage of pension and asking for refund of more than Rs. 08 lakhs amount had serious adverse effect on the petitioner, who was staying at his native place Darbhanga. A retired employee, who is receiving pension, cannot be asked to go to another court to file the writ petition, when he has a cause of action for filing a writ petition in Patna High Court. For a retired employee convenience is to prosecute his case at the place where he belonged to and was getting pension. The submission of the learned counsel for the respondent Nos.1 to 3 on principle of forum non conveniens has no substance."

It is argued that it is a case of compulsory retirement of the petitioner and the order was communicated to the petitioner at his home town at Bhopal. The representation submitted by the petitioner from his home town was entertained by the authorities and was rejected and the rejection order was also communicated to the petitioner at his home town, Bhopal.

In such circumstances, this Court is having jurisdiction to entertain the writ petition.

Per contra, counsel appearing for respondent no.2 has vehemently opposed the contentions and has argued that the entire scenario has taken place at New Delhi. The petitioner was in service at New Delhi, in the respondent's department. The order of compulsory retirement was passed from New Delhi. It is only a formal communication which was made to the petitioner as he was found to be in his home town during this Covid pandemic therefore, no cause of action virtually has arisen at Bhopal, thus the petition before this court is not maintainable for want of territorial jurisdiction. He has further placed reliance upon the Full Bench Signature SAN Not Verified

Digitally signed by SMT SHALINI SINGH LANDGE Date: 2021.10.30 10:32:10 IST 5 WP-21212-2021 judgement of the Delhi High Court in the case of Sterling Agro Industries Ltd. Vs. Union of India and others reported in AIR 2011 DEL 174 wherein the Full Bench is held as under :-

"30. From the aforesaid pronouncements, the concept of forum conveniens gains signification. In Black's Law Dictionary, forum conveniens has been defined as follows: "The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses."

31. The concept of forum conveniens fundamentally means that it is obligatory on the part of the court to see the convenience of all the parties before it. The convenience in its ambit and sweep would include the existence of more appropriate forum, expenses involved, the law relating to the lis, verification of certain facts which are necessitous for just adjudication of the controversy and such other ancillary aspects. The balance of convenience is also to be taken note of. Be it noted, the Apex Court has clearly stated in the cases of Kusum Ingots (supra), Mosaraf Hossain Khan (supra) and Ambica Industries (supra) about the applicability of the doctrine of forum conveniens while opining that arising of a part of cause of action would entitle the High Court to entertain the writ petition as maintainable.

32. The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens. The Full Bench in New India Assurance Co. Ltd. (supra) has not kept in view the concept of Signature SAN Not Verified

Digitally signed by SMT SHALINI SINGH LANDGE Date: 2021.10.30 10:32:10 IST 6 WP-21212-2021 forum conveniens and has expressed the view that if the appellate authority who has passed the order is situated in Delhi, then the Delhi High Court should be treated as the forum conveniens. We are unable to subscribe to the said view.

33. In view of the aforesaid analysis, we are inclined to modify the findings and conclusions of the Full Bench in New India Assurance Company Limited (supra) and proceed to state our conclusions in seriatim as follows:

(a) The finding recorded by the Full Bench that the sole cause of action emerges at the place or location where the tribunal/appellate authority/revisional authority is situate and the said High Court (i.e., Delhi High Court) cannot decline to entertain the writ petition as that would amount to failure of the duty of the Court cannot be accepted inasmuch as such a finding is totally based on the situs of the tribunal/appellate authority/revisional authority totally ignoring the concept of forum conveniens.

(b) Even if a miniscule part of cause of action arises within the jurisdiction of this court, a writ petition would be maintainable before this Court, however, the cause of action has to be understood as per the ratio laid down in the case of Alchemist Ltd. (supra).

(c) An order of the appellate authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is situated. Yet, the same may not be the singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.

(d) The conclusion that where the appellate or revisional Signature SAN Not Verified

Digitally signed by SMT SHALINI SINGH LANDGE Date: 2021.10.30 10:32:10 IST 7 WP-21212-2021 authority is located constitutes the place of forum conveniens as stated in absolute terms by the Full Bench is not correct as it will vary from case to case and depend upon the lis in question.

(e) The finding that the court may refuse to exercise jurisdiction under Article 226 if only the jurisdiction is invoked in a malafide manner is too restricted / constricted as the exercise of power under Article 226 being discretionary cannot be limited or restricted to the ground of malafide alone.

(f) While entertaining a writ petition, the doctrine of forum conveniens and the nature of cause of action are required to be scrutinized by the High Court depending upon the factual matrix of each case in view of what has been stated in Ambica Industries (supra) and Adani Exports Ltd. (supra).

(g) The conclusion of the earlier decision of the Full Bench in New India Assurance Company Limited (supra) "that since the original order merges into the appellate order, the place where the appellate authority is located is also forum conveniens" is not correct.

(h) Any decision of this Court contrary to the conclusions enumerated hereinabove stands overruled.

34. Ex consequenti, we answer the reference by partially overruling and clarifying the decision in New India Assurance Company Limited (supra) in the above terms. Matters be listed before the appropriate Division Bench for appropriate consideration. "

He has further placed reliance upon the judgment passed by this court in the case of Krishna Devi Jaiswal Vs. State of M.P. and others passed in W.P.No.11447/2018 dated 25.07.2018. This Bench has dismissed the writ petition for want of territorial jurisdiction therefore, he has prayed for dismissal of the petition being not maintainable.

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Date: 2021.10.30
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                                                          8                              WP-21212-2021

Heard learned counsel for the parties on the question of maintainability. From the record it is seen that the petitioner was in service in the respondent's department and was working at New Delhi. He was officiating from his home town during this Covid out break and the order of compulsory retirement was passed by the authorities and was communicated to the petitioner at Bhopal. The representation was submitted by the petitioner against the compulsory retirement order. The representation was entertained by the respondent authorities and the order was passed rejecting the representation vide order dated 13.07.2021 which was communicated to the petitioner at Bhopal. The Hon'ble Supreme Court in the similar circumstances has considered the aforesaid aspect in the case of Nawal Kishore Sharma (Supra) and considering the fact that the letter was sent to the petitioner at his native place at Bhopal where he was staying out of which he was found medically unfit. The representation was submitted by the petitioner from his home town at Bhopal claiming disability compensation. The representation was entertained and replied by the authorities and the reply was addressed to his home town at Bhopal and the claim was rejected.

When the communication was made by the authorities from the home town of the petitioner and subsequent rejection of the representation made by the petitioner from his home town and the rejection order was also communicated to his home town.

In such circumstances and following the judgments passed by the Hon'ble Supreme Court in the case of Nawal Kishore Sharma (Supra), the petition is held to be maintainable.

Issue notice to the respondents on payment of process fee within seven working days by RAD mode, returnable in six weeks.

                                                                                (VISHAL MISHRA)
                                                                                     JUDGE

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SMT SHALINI
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Date: 2021.10.30
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                       9   WP-21212-2021




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Verified

Digitally signed by
SMT SHALINI
SINGH LANDGE
Date: 2021.10.30
10:32:10 IST