Bhaskar Chandra Mohapatra vs Uco Bank And Others
2021 Latest Caselaw 7061 Ori

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 WA No.76 of 2020


            Bhaskar Chandra Mohapatra             ....                 Appellant
                                              Mr. Surendranath Panda, Advocate

                                            -versus-
            UCO Bank and others                     ....             Respondents
                                                      Mr. B.N. Udgata, Advocate

                    CORAM:
                    THE CHIEF JUSTICE
                    JUSTICE S.K. PANIGRAHI

                                      ORDER

Order No. 13.07.2021

7. 1. This matter is taken up by video conferencing mode.

2. The present appeal is directed against the judgment dated 28th January, 2020 of the learned Single Judge dismissing the Appellant's Writ Petition (C) No.18129 of 2016 on the ground of territorial jurisdiction and for a direction for restoring the aforementioned writ petition.

3. This is in fact the second round of litigation concerning the appellant's dismissal from the service by the respondent-UCO bank.

4. The background facts are that the Appellant while working as a Branch Manager on ad-hoc basis in Fauzdari Branch in

Bihar was placed under suspension in 3rd May, 2007. The disciplinary proceedings commenced and a charge sheet was submitted on 24th September, 2007. The final order of the Disciplinary Authority (DA) was passed on 24th June, 2008 dismissing the Appellant from service. The said order was admittedly communicated to the Appellant in his residential address At-Kantapal, Po-Charampa, District-Bhadrak. This order was confirmed by the Appellate Authority (AA) by the order dated 3rd February, 2010 which again was communicated to the Appellant at his residential address at Charampa Bhadrak.

5. The Appellant challenged the said order in W.P. (C ) No.5092 of 2010 before this Court. By a detailed order dated 14th July 2015, the learned Single Judge of this Court disposed of the aforesaid writ petition setting aside the order of dismissal and remitting the matter for a fresh enquiry in consonance with the 1976 Regulations and dispose of the same within a period of four months from the date of receipt of the judgment.

6. Significantly, the UCO Bank which contested the above writ petition does not appear to have raised the issue of lack of territorial jurisdiction. In any event, the learned Single Judge has made no reference to any such submission in the judgment dated 14th July, 2015 in W.P.(C) No.5092 of 2010. UCO bank

accepted the said judgment and in fact implemented the directions therein.

7. On remand, the DA again passed a dismissal order on 8th March, 2016. By this time, the Petitioner was placed under suspension. The fresh dismissal order was communicated to the Petitioner at his residential address at Charampa, Bhadrak. The Appellant was by this time said to be suffering from paralysis and undergoing treatment. The Appellant's appeal was dismissed by the Appellate Authority on 9th September, 2016 at Lucknow and this order too was communicated to the Petitioner at his address at Charampa, Bhadrak through the UCO Bank Bhadrak Branch.

8. Thereafter the Appellant filed the second writ petition, i.e., W.P. (C) No. 18129 of 2016 in this Court. The learned Single Judge by the impugned order dated 28th January, 2020 accepted the plea of UCO Bank and held that this Court lacked territorial jurisdiction. It was further observed that merely because the Court on an earlier occasion entertained the writ petition, without adjudicating the issue, cannot confer territorial jurisdiction on this Court over such disputes since no part of the cause of action arose in this State.

9. Having heard learned counsel for the parties, this Court is of the view that the impugned order of the learned Single Judge cannot be sustained in law for more than one reason.

10. The UCO Bank did not raise the plea of lack of territorial jurisdiction when it contested the earlier W.P. (C) No. 5092 of 2010 filed by the Appellant on merits. UCO Bank accepted the judgment dated 14th July, 2015 of the learned Single Judge in W.P. (C) No.5092 of 2010. The issue of territorial jurisdiction was raised for by it for the first time in the subsequent W.P. (C) No. 18129 of 2016 filed by the Appellant.

11. Secondly it would not be entirely correct to say that no part of the cause of action arose within the jurisdiction of this Court. By the time the order of the DA was passed in the first round, the Appellant had already retired. The order 3rd February, 2010 of the AA dismissing his appeal was communicated to the Appellant at Bhadrak. The orders of the DA and the AA in the second round were communicated to the Appellant at Bhadrak, within the territorial jurisdiction of this Court.

12. Article 226 (1) and (2) of the Constitution of India, which are provisions relevant to the issue at hand, read as follows:

"226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, 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 directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or

any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(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 the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) ....

(4) ...."

13. In Kusum Ingots v. Union of India (2004) 6 SCC 254, the Supreme Court explained: "In view of clause 2 of Article 226 of the Constitution of India now if a part of cause of action arises outside the jurisdiction of the High Court, it would have jurisdiction to issue a writ."

14. In Rajendran Chingaravelu v. Mr. R.K.Mishra (2010) 1 SCC 457, the facts were that the Petitioner was that the security/ intelligence officials at Hyderabad Airport (in Andhra Pradesh) inspected the cash carried by the Petitioner and alerted their counterparts at the Chennai Airport that Appellant was carrying a huge sum of money, and required to be intercepted and questioned. After he landed in Chennai, the consequential income tax proceedings were initiated against the Appellant, which he challenged in a writ petition before the Andhra Pradesh High Court. Reversing the order of the High Court which rejected the writ petition at the threshold on the

ground of lack of territorial jurisdiction, the Supreme Court held:

"The first question that arises for consideration is whether the Andhra Pradesh High Court was justified in holding that as the seizure took place at Chennai (Tamil Nadu), the appellant could not maintain the writ petition before it. The High Court did not examine whether any part of cause of action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear that the High Court exercising jurisdiction in relation to the territories within which the cause of action arises wholly or in part, will have jurisdiction. This would mean that even if a small fraction of the cause of action (that bundle of facts which gives a petitioner, a right to sue) accrued within the territories of Andhra Pradesh, the High Court of that State will have jurisdiction. In this case, the genesis for the entire episode of search, seizure and detention was the action of the Therefore, his writ petition ought not to have been rejected on the ground of want of jurisdiction."

15. In Sterling Agro Industries v. Union of India AIR 2011 Del 174, a five-Judge Bench of the Delhi High Court was called upon to consider the correctness of an earlier ruling of a Full Bench of that High Court in New India Assurance Company Limited v. Union of India AIR 2010 Delhi 43 (FB) and in particular, the question of territorial jurisdiction of the High Court under Article 226 of the Constitution in light of the doctrine of forum conveniens. After discussing the earlier decisions of the Supreme Court in Kusum Ingots (supra); Ambica Industries v. Commissioner of Central Excise, 2007 (213) ELT 323(SC); Alchemist Ltd. v. State Bank of Sikkim

(2007) 11 SCC 335 and Union of India v. Adani Exports Ltd. (2002) 1 SCC 567, the Five-Judge Bench of the Delhi High Court summarised the legal position thus:

"(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 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."

16. Turning to the case on hand, a part of the cause of action in the present case did arise within the jurisdiction of this Court, as explained earlier. Even applying the doctrine of forum conveniens it was open to the Petitioner to choose to approach either the High Court at Patna or this Court since a part of the cause of action did arise in the jurisdiction of both Courts. Consequently, this Court is unable to agree with the stand of UCO Bank that this Court lacked territorial jurisdiction to entertain the writ petition of the Appellant.

17. Since the writ petition was dismissed by the learned single Judge solely on the ground of lack of territorial jurisdiction, the impugned order of the learned Single Judge is hereby set aside. The appeal is allowed. W.P.(C) No. 18129 of 2016 is restored to file of the learned Single Judge who shall decide it afresh on merits in accordance with law on the existing pleadings.

18. W.P. (C) No.18129 of 2016 shall be listed before the assigned Bench on 9th August, 2021 for a fresh hearing on merits. The learned Single Judge shall endeavour to dispose of the writ petition on the existing pleadings within a period of four months thereafter.

19. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.

(Dr. S. Muralidhar) Chief Justice

(S.K. Panigrahi) Judge Ajit Kumar Dutta/ Sangita Patra