A Full Bench of the Kerala High Court comprising Justice Antony Dominic, Justice K.
Ramakrishnan and Justice Anil K. Narendran has overruled the dictum laid down in Selvin Abraham v. Punjab & Sind Bank1
and held in Registrar, Indian Maritime
University v. V. Viswanathan2 that a writ petition can be
entertained only in a High Court within the territorial jurisdiction of which
an 'integral part of the cause of action has arisen'.
The
Full Bench was answering a reference made by a Division Bench of the Kerala
High Court which had doubted the correctness of Selvin Abraham (supra) on the ground that the same is apparently in
conflict with the principles laid down by a Full Bench of the Kerala High Court
in Nakul Deo Singh v. Deputy Commissioner3.
The Division Bench which made the reference was considering an appeal filed by
the Indian Maritime University against
the order dated 27.11.2013 of the learned Single Judge in W.P. (C) No.
22184/2013 holding the writ petition as maintainable after rejecting the
objection of the respondent-University that since the entire cause of action
had arisen outside Kerala, the writ petition was not maintainable.
In
Selvin Abraham (supra), the
correctness of which was doubted by the Division Bench making the reference,
while working as Assistant Manager in the Punjab & Sind Bank at Coimbatore,
the appellant Selvin Abraham was proceeded against for certain misconduct which
culminated in an order of dismissal issued by the Disciplinary authority which
order was served on him at his native place in Kerala. His appeal and review
against the order of dismissal were also dismissed, whereupon he had filed a
writ petition before the Kerala High Court challenging the said orders. The
learned Single Judge accepted the objections raised by the Bank that the High
Court lacked the territorial jurisdiction to entertain the writ petition as the
entire cause of action arose outside the State.
Selvin Abraham, assailing the judgment of the learned Single Judge contended before the
Division Bench that the order of dismissal became effective only when it was
served on him at his address at Kottayam in Kerala and therefore, an integral
part of the cause of action arose within the jurisdiction of the Kerala High
Court. The Division Bench accepted the contention of the appellant and held
that “an order of dismissal when it becomes
effective definitely forms an integral part of the cause of action, and that
service of notice of an order of dismissal is not mere service of notice, it
definitely gives rise to a cause of action and such service of notice forms an
integral part of the cause of action.”
In
Nakul Deo Singh v. Deputy Commissioner
(supra), the Full Bench had considered
the question whether the decision rendered by an authority located outside the
jurisdiction of the Kerala High Court, when communicated to the party while he
is within the jurisdiction of the Kerala High Court is a fact in the bundle of
facts constituting the cause of action. The Full Bench in Nakul Deo Singh (supra) observed that what really arose for its decision
was whether the fact that on communication of the order, it becomes effective
as far as the person is concerned, gives him the right to approach the High
Court for relief. Answering the reference in that case, the Full Bench had held
that receipt of communication by itself does not constitute a cause of action
and that at best, receipt of the order or communication only gives the party
right of action based on the cause of action which already arose out of the
action complained of. On that basis the Full Bench in Nakul Deo Singh (supra) took the view that when the action complained of takes
place outside the territorial jurisdiction of the High Court and an appeal
therefrom is also dismissed by an authority located outside the jurisdiction of the High
Court, cause of action wholly arises outside the jurisdiction of the High Court
and Article 226(2) of the Constitution cannot be invoked to sustain a writ petition on the basis
that an integral part of the cause of action has arisen within the jurisdiction
of the Kerala High Court. The Full Bench also held that the fact that until it
is published or made known, an order does not become effective is not a ground
to hold that the communication of the order to the aggrieved person forms part
of the cause of action. It was also found by the Full Bench in Nakul Deo Singh (supra) that the fact that a
person who was dismissed from service while he was in service outside the
State, would have to suffer the consequence of the dismissal when he is in his
native place is not a fact which constitutes the bundle of facts giving rise to
a cause of action in his favour.
In
holding that a writ petition can be entertained only in a High Court within the
territorial jurisdiction of which an 'integral part of the cause of action has
arisen', the Full Bench in Registrar,
Indian Maritime University v. V. Viswanathan (supra) inter alia referred to
and relied on the principle laid down in the judgment of the Apex Court in Kusum Ingots & Alloys Ltd. v. Union of
India4 to the effect that (i) the facts pleaded in the writ petition
must have a nexus, on the basis whereof, the prayer can be granted and when
those facts have no nexus, it cannot be said to be given rise to a cause of
action which would confer jurisdiction on the Court, and (ii) even if a small
part of the cause of action arises within the territorial jurisdiction of the
High Court, the same by itself may not be considered to be a determinative
factor compelling the High Court to decide the matter on merits, and that in
appropriate cases, the Court may refuse to exercise its discretionary
jurisdiction by invoking the doctrine of forum
conveniens. The Full bench also held that it is also a settled principle of
law that in a service dispute, issue of an order of termination gives rise to
cause of action and service of that communication, though is necessary to give
effect to the order, does not amount to a part of the cause of action much less
an integral part of the cause of action. In other words, the issue of the order
gives rise to the cause of action and the service of the order gives rise to a
right of action.
The
Full Bench in Registrar, Indian Maritime
University v. V. Viswanathan (supra) after thus considering a catena of
decisions on the point held that Selvin
Abraham (supra) does not lay down
good law as the principles laid down therein are contrary not only to the Full
Bench judgment in Nakul Deo Singh (supra) but also to the Apex Court judgments
referred to and therefore, overruled the same.
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1.
2013 KHC 404: 2013 (3) KLT 481
2.
2014 (4) KHC 451 (FB)
3.
1999 KHC 647: 1999 (3) KLT 629
4.
2004 KHC 1435 : 2004(6) SCC 254
