Punjab-Haryana High Court
Sudesh vs Union Of India And Others on 20 March, 2024
Neutral Citation No:=2024:PHHC:040167
2024:PHHC:040167
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
138 CWP-5955-2024
Date of decision: 20.03.2024
SUDESH ....PETITIONER
Vs.
UNION OF INDIA AND OTHERS ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: Mr. B.S. Rathee, Advocate
for the petitioner.
Mr. Vijay Pal, Senior Panel Counsel
for the respondents-Union of India.
****
JAGMOHAN BANSAL, J (ORAL)
1. The petitioner through instant petition under Articles 226/227 of
the Constitution of India is seeking directions to the respondents to release her
compassionate allowance and family pension.
2. The husband of the petitioner joined respondent-ITBP as constable
on 04.04.1988. He was served charge-sheet dated 20.04.1995 which ultimately
culminated in order of dismissal dated 27.08.1995. He preferred Civil Writ
Petition before Delhi High Court seeking setting-aside of said dismissal order.
During the pendency of said writ petition, he passed away on 07.07.1997. The
petitioner being wife was released GPF vide letter dated 30.06.1998. The said
writ petition came to be dismissed vide order dated 01.04.2011.
3. Learned counsel for the petitioner inter alia submits that dismissal
of above-said writ petition was not in the knowledge of the petitioner. In 2023
she came to know about the above-said writ petition. She moved representation
followed by legal notice dated 24.01.2024 for release of family pension and
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other retiral benefits. She in view of Rule 41 of CCS Rules, 1972 is entitled to
compassionate allowance and Rule 54 of CCS Rules, 1972 family pension on
account of death of her Husband.
4. I have heard the arguments of learned counsel for the petitioner and
perused the record.
5. The conceded position emerging from the record is that husband of
the petitioner was dismissed from service vide order dated 27.08.1995 and
against the said dismissal order, he preferred Civil Writ Petition before Delhi
High Court which stands dismissed. The respondent-Department in reply to the
legal notice dated 24.01.2024 has categorically stated that her husband was
awarded imprisonment of one year & six months' and also dismissed from
services. She is not entitled to compassionate allowance.
6. No part of cause of action has arisen within the jurisdiction of this
Court. None of the respondents is located within the jurisdiction of this Court.
The petitioner has invoked jurisdiction of this Court on the sole ground that
petitioner is resident of State of Haryana. Moreover, the husband of the
petitioner died in year 1997 and petitioner has approached this Court in 2024.
7. On being asked, the reason of delay, counsel for the petitioner failed
to advance any plausible reason for the delay of 26 years except to plead that
pension is a recurring cause.
8. No hard-and-fast rule can be laid down as to when the High Court
should refuse to exercise its jurisdiction in favour of a party who moves it after
considerable delay and is otherwise guilty of laches. Discretion must be
exercised judiciously and reasonably. In the event that the claim made by the
applicant is legally sustainable, delay should be condoned. Where illegality is
manifest, cannot be sustained on the sole ground of laches. When substantial
justice and technical considerations are pitted against each other, the cause of
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substantial justice deserves to be preferred. State cannot deprive vested right
because of a non-deliberate delay.
9. A Division Bench of this Court vide judgment dated 04.04.2018 in
Kartar Singh v. Managing Director, HVPNL and others, CWP No.26962 of
2015, after noticing various judgments of Apex Court has dismissed similar
petition on the ground that writ petition has been filed after a long time from the
date of retirement.
10. A Coordinate Bench of this Court vide order dated 03.05.2015 in
Sandeep Kharab v. State of Haryana and others, CWP No.5965 of 2011; order
dated 04.09.2012 in Bal Krishan v. State of Punjab and others, CWP No.18498
of 2011 and order 29.11.2012 in Tarsem Pal v. Punjab State Power Corporation
Limited and others, CWP No.13965 of 2010 has dismissed petitions on the
ground that writ jurisdiction cannot be invoked at the will and convenience of
the litigant. Anyone who claims rights must be vigilant and he must enforce his
rights within reasonable time. In the case in hand, the petitioner opted to remain
silent from 2012 to 2019 i.e. during his service as well as 2019 to 2023 i.e. post
retirement. By his act and conduct, the petitioner acquiesced to action of the
respondents and waived off his right, if any.
11. In Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110 and
Rabindranath Bose v. Union of India (1970) 1 SCC 84, Supreme Court has
ruled that even in cases of violation or infringement of fundamental rights, a writ
court may take into account delay and laches on the part of the petitioner in
approaching the court and if there is gross or unexplained delay, the court may
refuse to grant relief in favour of such petitioner.
12. In Chennai Metropolitan Water Supply & Sewerage Board V. T.T.
Murali Babu (2014) 4 SCC 108, Supreme Court has ruled:
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'16. Thus, the doctrine of delay and laches should not
be lightly brushed aside. A writ court is required to
weigh the explanation offered and the acceptability of
the same. The court should bear in mind that it is
exercising an extraordinary and equitable jurisdiction.
As a constitutional court it has a duty to protect the
rights of the citizens but simultaneously it is to keep
itself alive to the primary principle that when an
aggrieved person, without adequate reason,
approaches the court at his own leisure or pleasure,
the court would be under legal obligation to scrutinise
whether the lis at a belated stage should be entertained
or not. Be it noted, delay comes in the way of equity. In
certain circumstances delay and laches may not be
fatal but in most circumstances inordinate delay would
only invite disaster for the litigant who knocks at the
doors of the court. Delay reflects inactivity and
inaction on the part of a litigant--a litigant who has
forgotten the basic norms, namely, 'procrastination is
the greatest thief of time' and second, law does not
permit one to sleep and rise like a phoenix. Delay does
bring in hazard and causes injury to the lis.'
13. In Union of India v. N. Murugesan, (2022) 2 SCC 25, court has
observed that a neglect on the part of a party to do an act which law requires
must stand in his way for getting the relief or remedy. The Court laid down two
essential factors i.e. first, the length of the delay and second, the developments
during the intervening period. Delay in availing the remedy would amount to
waiver of such right. Relevant extracts of the judgment read as:
"20. The principles governing delay, laches, and
acquiescence are overlapping and interconnected on
many occasions. However, they have their distinct
characters and distinct elements. One can say that
delay is the genus to which laches and acquiescence
are species. Similarly, laches might be called a genus
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to a species by name acquiescence. However, there
may be a case where acquiescence is involved, but not
laches. These principles are common law principles,
and perhaps one could identify that these principles
find place in various statutes which restrict the period
of limitation and create non-consideration of
condonation in certain circumstances. They are bound
to be applied by way of practice requiring prudence of
the court than of a strict application of law. The
underlying principle governing these concepts would
be one of estoppel. The question of prejudice is also an
important issue to be taken note of by the court.
21. The word "laches" is derived from the French
language meaning "remissness and slackness". It thus
involves unreasonable delay or negligence in pursuing
a claim involving an equitable relief while causing
prejudice to the other party. It is neglect on the part of
a party to do an act which law requires while asserting
a right, and therefore, must stand in the way of the
party getting relief or remedy.
22. Two essential factors to be seen are the length of
the delay and the nature of acts done during the
interval. As stated, it would also involve acquiescence
on the part of the party approaching the court apart
from the change in position in the interregnum.
Therefore, it would be unjustifiable for a Court of
Equity to confer a remedy on a party who knocks its
doors when his acts would indicate a waiver of such a
right. By his conduct, he has put the other party in a
particular position, and therefore, it would be
unreasonable to facilitate a challenge before the court.
Thus, a man responsible for his conduct on equity is
not expected to be allowed to avail a remedy."
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14. A two Judge Bench of Hon'ble Supreme Court in Alchemist Ltd. v.
State Bank of Sikkim, (2007) 11 SCC 335 while dealing with question of
territorial jurisdiction has held that "part of cause of action" must arise to
constitute territorial jurisdiction. High Court cannot invoke writ jurisdiction if
no part of cause of action has arisen within its jurisdiction. In the said case, this
Court dismissed writ petition despite claim of petitioner that the petitioner
company has its registered and corporate office at Chandigarh; the offer of the
petitioner company was accepted on 20-2-2004 and the acceptance was
communicated to it at Chandigarh; part-performance of the contract took place
at Chandigarh inasmuch as Rs 4.50 crores had been deposited by the petitioner
company in a fixed deposit at Chandigarh as per the request of the first
respondent; the Chairman and Managing Director of the first respondent visited
Chandigarh to ascertain the bona fides of the petitioner company; negotiations
were held between the parties in the third week of March, 2005 at Chandigarh;
and letter of revocation dated 23-2-2006 was received by the petitioner company
at Chandigarh. The petitioner company filed SLP before Supreme Court which
came to be dismissed. The relevant extracts of the judgment read as:-
"6. The High Court dismissed the writ petition only on the
ground that it did not have territorial jurisdiction to entertain
the writ petition as no cause of action had arisen within the
territorial jurisdiction of the Court. The High Court did not
enter into merits of the matter and granted liberty to the
appellant Company to seek appropriate remedy before an
appropriate court.
7. The said decision of the High Court is challenged by
the appellant Company in this appeal. We have heard the
learned counsel for the parties.
8. The appellant Company contended that a part of cause
of action had arisen within the territorial jurisdiction of the
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High Court of Punjab and Haryana. The appellant Company,
for such submission, relied on the following facts:
(i) the appellant Company has its registered and
corporate office at Chandigarh;
(ii) the appellant Company carries on business at
Chandigarh;
(iii) the offer of the appellant Company was accepted
on 20-2-2004 and the acceptance was communicated to
it at Chandigarh;
(iv) part-performance of the contract took place at
Chandigarh inasmuch as Rs 4.50 crores had been
deposited by the appellant Company in a fixed deposit
at Chandigarh as per the request of the first
respondent;
(v) the Chairman and Managing Director of the first
respondent visited Chandigarh to ascertain the bona
fides of the appellant Company;
(vi) negotiations were held between the parties in the
third week of March, 2005 at Chandigarh;
(vii) letter of revocation dated 23-2-2006 was received
by the appellant Company at Chandigarh.
Consequences of the revocation ensued at Chandigarh
by which the appellant Company is aggrieved.
It was, therefore, submitted that at least a part of cause of
action had certainly arisen within the territorial jurisdiction
of the High Court of Punjab and Haryana and hence it had
jurisdiction to entertain the petition. It was, therefore,
submitted that the impugned order passed by the High Court
deserves to be set aside by directing the Court to decide the
writ petition on merits.
9. The respondents, on the other hand, submitted that
neither of the above facts nor circumstances can be said to be
a part of cause of action investing jurisdiction in the High
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Court of Punjab and Haryana. According to the respondents,
all substantial, material and integral facts constituting a
cause of action were within the territory of the State of Sikkim
and, hence, the High Court of Punjab and Haryana was fully
justified in holding that it had no territorial jurisdiction to
entertain, deal with and decide the lis between the parties.
10. The respondents, in this connection, relied upon the
following facts:
(i) registered and corporate office of the first
respondent Bank is at Gangtok i.e. Sikkim;
(ii) secretariat of the second respondent State is
situated at Gangtok i.e. Sikkim;
(iii) offers were called for from various parties at
Gangtok;
(iv) all offers were scrutinised and a decision to accept
offer of the appellant Company was taken by the first
respondent Bank at Gangtok;
(v) the State Government's decision not to approve the
proposal of the appellant Bank was taken at Gangtok;
(vi) the meeting of the Board of Directors of the first
respondent Bank was convened at Gangtok and a
resolution was passed to withdraw the letter dated 20-
2-2004 at Gangtok;
(vii) a communication was dispatched by the first
respondent Bank to the appellant Company on 23-2-
2004 from Gangtok.
xxxx xxxx xxxx
12. Before entering into the controversy in the present
appeal, let the legal position be examined:
Article 226 of the Constitution as it originally enacted
had twofold limitations on the jurisdiction of High
Courts with regard to their territorial jurisdiction.
Firstly, the power could be exercised by the High Court
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"throughout the territories in relation to which it
exercises jurisdiction" i.e. the writs issued by the court
cannot run beyond the territories subject to its
jurisdiction. Secondly, the person or authority to whom
the High Court is empowered to issue such writs must
be "within those territories", which clearly implied
that they must be amenable to its jurisdiction either by
residence or location within those territories.
xxxx xxxx xxxx
26. In Union of India v. Oswal Woollen Mills Ltd.
[(1984) 2 SCC 646 : 1984 SCC (Cri) 348 : AIR 1984
SC 1264 : (1984) 3 SCR 342] the registered office of
the Company was situated at Ludhiana, but a petition
was filed in the High Court of Calcutta on the ground
that the Company had its branch office there. The order
was challenged by the Union of India. And this Court
held that since the registered office of the Company
was at Ludhiana and the principal respondents against
whom primary relief was sought were at New Delhi,
one would have expected the writ petitioner to
approach either the High Court of Punjab and
Haryana or the High Court of Delhi. The forum chosen
by the writ petitioners could not be said to be in
accordance with law and the High Court of Calcutta
could not have entertained the writ petition.
xxxx xxxx xxxx
37. From the aforesaid discussion and keeping in view the
ratio laid down in a catena of decisions by this Court, it is
clear that for the purpose of deciding whether facts averred
by the appellant-petitioner would or would not constitute a
part of cause of action, one has to consider whether such fact
constitutes a material, essential, or integral part of the cause
of action. It is no doubt true that even if a small fraction of
the cause of action arises within the jurisdiction of the court,
the court would have territorial jurisdiction to entertain the
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suit/petition. Nevertheless it must be a "part of cause of
action", nothing less than that.
38. In the present case, the facts which have been pleaded
by the appellant Company, in our judgment, cannot be said to
be essential, integral or material facts so as to constitute a
part of "cause of action" within the meaning of Article
226(2) of the Constitution. The High Court, in our opinion,
therefore, was not wrong in dismissing the petition.
39. For the foregoing reasons, we see no infirmity in the
order passed by the High Court dismissing the petition on the
ground of want of territorial jurisdiction. The appeal,
therefore, deserves to be dismissed and is accordingly
dismissed. In the facts and circumstances of the case,
however, we leave the parties to bear their own costs.
15. A Full Bench of Kerala High Court in The Registrar, Indian
Maritime University Versus K.G. Viswanathan and Another; 2014 SCC
OnLine Ker 21221 has considered similar issue involved in the present case.
The petitioner therein approached Kerala High Court challenging the orders
passed by disciplinary authorities at Tamil Nadu on the ground that the orders
were communicated to the petitioner at Kerala, thereby integral part of cause of
action arose within the jurisdiction of Kerala High Court. The petitions came to
be dismissed on the ground that no part of the cause of action has arisen, much
less any integral part of cause of action, in the jurisdiction of Kerala High Court.
The relevant paragraphs read as:-
"5. In Selvin Abraham (supra), the correctness of which is
doubted, while working as Assistant Manager in the Punjab
& Sind Bank at Coimbatore, the appellant was proceeded
against for certain misconducts. Enquiry was conducted at
Coimbatore and the charges were proved. The Disciplinary
Authority dismissed him from service. This order was served
on him at his native place in Kerala. His appeal and review
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were also dismissed. He filed a writ petition before the
Kerala High Court challenging the order of suspension,
dismissal and the orders passed by the appellate and review
authorities. Objection was raised by the bank that this Court
lacked territorial jurisdiction to entertain the writ petition as
the entire cause of action arose outside the State. This
contention was accepted by the learned single Judge, relying
on the judgment of the Full Bench in Nakul Deo singh (supra)
and the writ petition was accordingly dismissed.
xxxx xxxx xxxx xxxx
52. Since Nawal Kishore Sharma (supra) was decided "in the
peculiar facts and circumstances" of the case, in view of the
principles laid down in Rafiq Masih (supra), we should
accept the contention that relief was granted in Nawal
Kishore Sharma, in exercise of the powers of the Apex Court
under Article 142 of the Constitution of India.
53. Thus, the conclusion is irresistible, that the principles laid
down in Selvin Abraham are contrary, not only to the Full
Bench judgment in Nakul Deo Singh but also to the Apex
Court judgments we have referred to. As a result, Selvin
Abraham does not laid down good law and therefore, is
overruled. The question referred to the Full Bench is
answered as aforesaid.
54. Coming to the cases that are referred to the Full Bench, in
W.A. 743/14, by Ext.P2 notification issued by the appellant
from Chennai where its head office is situated, applications
were invited to various posts, including the post of Professor
(Management). In response to the notification, the
respondent, who is presently working as a Professor in the
NSS College of Engineering, Palakkad applied and he was
invited for an interview at Chennai. He appeared for the
interview and was issued Ext.P4 communication from
Chennai, whereby, he was offered the post and was asked to
report at Chennai. He accepted the offer by Ext.P5 and
requested for a posting at the Cochin campus of the
appellant. By Ext.P7 e-mail, he was informed that his request
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was accepted and was requested to report at the head
quarters of the appellant. However, by Ext.P6 e-mail, he was
informed that the offer is kept in abeyance and was thereafter
issued Ext.P1 communication from Chennai, informing that
the offer of appointment was withdrawn. It was in these
circumstances, he filed W.P. (C) 22184/13 with the following
main prayers:
"(a) Issue a writ of certiorari or any other appropriate
writ, order or direction calling for the records leading
to the issue of Ext.P-1 and quash the same;
(b) Issue a writ of mandamus or any other appropriate
writ, order or direction commanding the respondents to
allow the petitioner to join duty as Professor
(Management) as originally ordered in terms of Exhibit
P4 read with Exhibit P7 with all consequential benefits
emanating therefrom;"
55. In so far as W.P. (C) 8678/14 is concerned, since
30.3.2009, the petitioner herein was working as Branch
Manager of Indian Bank at Microsate at Puducherry. He
continued there till 29.4.2010 when he was transferred and
posted to Perinthalmanna, where, he joined on 1.5.2010. He
was later transferred to Kunnamkulam on 11.7.2011 and
while working at Kunnamkulam, by Ext.P2 order, he was
placed under suspension pending disciplinary action. He was
thereafter issued with Ext.P3 memo of charges containing
various misconducts, all relating to his tenure at Puducherry
and the disciplinary authority was the Assistant General
Manager, Zonal office, Puducherry, the 4th respondent.
Preliminary enquiry was conducted at the Zonal office,
Puducherry on 30.12.2011 and the petitioner participated in
the enquiry. 56. Thereafter, enquiry was also conducted at the
Zonal office, Puducherry in which also, the petitioner
participated. Ext.P4 is the report of the enquiry that was
submitted to the disciplinary authority. The disciplinary
authority, thereafter, forwarded the enquiry report along with
his letter dated 20.7.2012, which was served on the petitioner
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while he was at Palakkad. The petitioner submitted his
objection against the findings of the enquiry officer. This was
considered by the disciplinary authority, who, thereafter,
issued Ext.P5 order dated 26.9.2012, removing the petitioner
from service. This order was issued from Puducherry and was
served on the petitioner while he was at Palakkad. He filed
an appeal to the General manager, Indian Bank, Chennai
which was rejected and this order was also communicated to
the petitioner at Palakkad. He filed a review application to
the first respondent, the Chairman and Managing Director of
the Bank at Chennai. That was also rejected by Ext.P9 order
which also was served on the petitioner at Palakkad.It was in
these circumstances, the writ petition was filed with the
following main prayers:
1) To issue Writ in the (nature of) certiorari to quash
Ext.P3, Ext.P4, Ext.P5, Ext.P6 & Ext.P9 as legally
unsustainable and violative of Article 14 & 16 of the
Constitution of India.
2) To issue Writ in the nature of mandamus
commanding the 4th respondent to reinstate the
petitioner in service with retrospective effect from the
date of dismissal and grant all other consequential
benefits including arrears of pay, pay and allowance
etc.
3) To issue writ in the nature of mandamus
commanding the 4th respondent to treat the period of
absence from the date of suspension to date of
reinstatement as duty for all purposes and grant such
other service benefits which were otherwise entitled to
the petitioner untrammeled by the suspension and
subsequent dismissal from service.
57. Having gone through the pleadings, we do not see any
averment in the writ petitions where the petitioners have
raised any plea as to how the Kerala High Court has
territorial jurisdiction over the cause of action which led
them to file the writ petitions. Instead, counsel wanted us to
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infer from the above pleading that an integral part the cause
of action arose within the jurisdiction of this Court. However,
if the facts which we have noticed above are evaluated in the
light of the law laid down in Nakul Deo Singh and the Apex
Court judgments, according to us, the only conclusion that is
possible is that no part of the cause of action, much less any
integral part of the cause of action, has arisen within the
territorial jurisdiction of this Court justifying the
entertainment of these writ petitions."
16. A similar question came up for consideration before Division Bench
of this Court in M/s Vijay K. Jairath And Co. Versus Union of India and
Another; CWP No.12420 of 2008 (decided on 01.05.2012). There was a
difference of opinion among the Judges of the Division Bench, thus, matter was
referred to third Judge of this Court. On the basis of opinion of majority, it was
concluded that this Court, on the basis of mere communication, has no
jurisdiction to entertain writ petition.
17. In the case in hand, no part of cause of action has arisen within
jurisdiction of this Court. The petitioner has invoked jurisdiction of this Court on
the sole ground that at present she is resident of Haryana.
18. In view of afore-stated facts and findings, this Court is of the
considered opinion that neither cause of action has arisen within jurisdiction of
this Court nor there is plausible explanation for delay of 26 years, thus, present
petition is not maintainable. Accordingly, dismissed.
19.03.2024 [JAGMOHAN BANSAL]
manoj JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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