Oral Judgment: (A.B. Chaudhari, J.)
1. Rule. Rule is made returnable forthwith. Learned AGP Ms. Deshpande waives service on behalf of respondent nos. 1 and 4, and learned Adv. Mr. S.V. Purohit, Adv., for respondent nos. 2 and 3. With the consent of rival parties, this Writ Petition is taken up for final hearing.
2. By the present petition, the petitioner seeks quashing of impugned order dated 15th February, 2014, by which, his selection to the post of Asstt. Electrician was cancelled.
3. In support of the Writ Petition, the learned counsel for the petitioner vehemently argued that the petitioner belongs to Scheduled Caste. He applied for the post pursuant to the advertisement that was issued for filling the vacant posts in the districts of Nagpur, Aurangabad, Jalgaon etc., in the State of Maharashtra on the establishment of the Maharashtra State Electricity Distribution Co., Ltd. He applied in the category of Scheduled Caste by making an on-line application on 19th June, 2012. He was called for interview and selection. Having qualified finally, he received a message on his mobile phone on 14th June, 2013 that he was selected to the said post in the category and to remain present at the Zonal Office, Pune, on 20th June, 2013 when he was personally handed over the Letter of Selection. He accordingly went to complete all the formalities on the very next date and the respondent no.3 on 21st June, 2013 forwarded the letter for verification of character to the Superintendent of Police, Gondia. On 21st October, 2013, respondent no.2 asked him to submit Police Verification Form etc. He completed all formalities accordingly. During verification, he visited Police Station, Duggipar, Tq. Sadak Arjuni, Distt. Gondia, and he submitted the documents relating to Crime No. 56/2008 under Section 12A of the Maharashtra Prevention of Gambling Act and judgment of his acquittal dated 15th May, 2011 in the said crime delivered by1 the Judicial Magistrate First Class, Sadak Arjuni, in Summary Case No. 2134 of 2009. Acting upon those documents, Superintendent of Police, Gondia, submitted his report on 11th July, 2013 to the respondent no.3, clearly stating that the petitioner was acquitted on 15th May, 2011. The said report was received by the respondent no.3 and he issued the impugned order dated 15th February, 2014 cancelling his selection on the same ground that he deliberately concealed the fact in the Attestation Form that no offence was pending against him. The counsel for the petitioner relied on the following decisions to substantiate his arguments:-
[a] T.S. Vasudavan Nair Vs. Director of Vikram Sarabhai Space Centre and others [1988 (Supp) SCC 795],
[b] Regional Manager, Bank of Baroda Vs. Presiding Officer, Central Govt. Industrial Tribunal and another [(1999) 2 SCC 247],
[c] D.Mahadevan Vs. The Director General of Police [(20080 4 MLJ 88],
[d] The Secretary to Govt., Home Deptt., and two others Vs. P. Ravichandran and another [Division Bench decision dated 17th October, 2005 of Madras High], and
[e] Commissioner of Police Vs. Dhawal Singh [1999 (1) SCC 246].
4. Per contra, learned counsel for the respondent nos. 2 and 3 vehemently opposed the Writ Petition and argued, inviting our attention to Clause 11 of the Attestation Form, which provides for disclosure whether the candidate was any time arrested, prosecuted, detained etc., and to that the petitioner did not give any reply when he fully knew that he was prosecuted under Section 12A of the Maharashtra Prevention of Gambling Act in Summary Case No. 2134 of 2009. The fact that he was acquitted on 15th May, 2011, i.e., before the date of his application for employment on 19th June, 2012 is not relevant, but what is relevant is whether he honestly disclosed about his prosecution in a criminal case and, therefore, this Court need not interfere with the impugned cancellation order. He cited a Division Bench order of this Court at Aurangabad in Writ Petition No. 8388 of 2013, decided on 27th January, 2014 [Coram : R.M. Borde and N.W. Sambre, JJ.] in case of Haresh Pandit Chaudhari Vs. Chief Engineer, Maharashtra State Electricity Distribution Co., Ltd. The learned counsel for the respondent nos. 2 and 3 took a Preliminary Objection to the territorial jurisdiction of this Court to entertain the Writ Petition, on the ground that the process of selection and cancellation took place at Pune and the cause of action arose at Pune and, therefore, it is the Principal Seat of this Court which has the territorial jurisdiction and not the Nagpur Bench of the Bombay High Court and, therefore, the petition should not be entertained at Nagpur Bench of the Bombay High Court. He relied on the decision in the case of VSP Acqua Mist Fire Pvt. Ltd., Nagpur Vs. Maharashtra State Electricity Transmission Co., Ltd., Mumbai [2010 (2) Mh.L.J. 575]. Mr. Purohit, therefore, prayed for dismissal of the Writ Petition on both the counts.
CONSIDERATION:
5. We have perused the entire Writ Petition, so also the documents on record. We have heard learned counsel for the rival parties.
6. It is essential to address the question of territorial jurisdiction raised by the learned counsel for the respondent first.
7. It is necessary to have a short legal history about the jurisdiction conferred by Article 226 of the Constitution. In Khajoor Singh Vs. Union of India [AIR 1961 SC 532], a Bench of seven Judges of the Supreme Court confirmed the view taken in the case of Saka Venkata Rao [AIR 1953 SC 210], holding that the person or authority to whom the High Court is empowered to issue a Writ must be within its territorial jurisdiction either by residence or location. Realising the difficulty of the people at large, the Parliament amended Article 226 by the Constitution (Fifteenth Amendment) Act, 1963, and added a new clause (1-A), which was then re-numbered as Clause (2) by the Constitution (Forty-second Amendment) Act, 1976, and that is what is the extant position. The underlying object of amendment was expressed in the following words:-
âUnder the existing Article 226 of the Constitution, the only High Court which has jurisdiction with respect to the Central Government is the Punjab High Court. This involves considerable hardship to litigants from distant places. It is, therefore, proposed to amend Article 226. So that when any relief is sought against any Government, authority or person for any action taken, the High Court within whose jurisdiction the cause of action arises may also have jurisdiction to issue appropriate directions, orders or writs.â
Thus, the accrual of cause of action was an additional ground to confer jurisdiction on the High Court. Before we proceed to elaborate on this aspect of the matter, we would first deal with the aspect that the petitioner has filed this Petition in this Court on one of the grounds that he is a resident of a village in the district of Gondia, which falls in the territorial jurisdiction of this Bench, which is objected to by the counsel for the respondent nos. 2 and 3. We must uphold the objection raised by Mr. Purohit, learned counsel for the respondent nos. 2 and 3, that a mere residence of the petitioner in the area in the territorial jurisdiction of this Bench cannot be a ground for a person to file a Writ Petition at Nagpur Bench of Bombay High Court. In fact, that is the trite law pronounced by the Supreme Court in various judgments, and one of which is in the case of National Textile Corporation Ltd., and others Vs. Haribox Swalram and others [(2004) 9 SCC 786], wherein referring the earlier decisions, the Apex Court said thus:-
âthe mere fact that the writ petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta is not an integral part of the cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained.â
Similar are the decision in the cases of [1] Union of India and others Vs. Oswal Woollen Mills Ltd., and others [AIR 1984 SC 1264], [2] State of Rajasthan and others Vs. M/s. Swaika Properties [AIR 1985 SC 1289], [3] Oil and Natural Gas Commission (ONGC) Vs. Utpal Kumar Basu and others [ (1994) 4 SCC 711], and [4] Union of India Vs. Adani Exports Ltd [(2002) 1 SCC 567]. In our opinion, therefore, mere residence of the petitioner in the territorial area of this Bench does not enable him to institute a Writ Petition before this Bench.
8. The next aspect is about the cause of action. The facts in the instant case about cause of action are that the respondent no.3 sent a letter to the Superintendent of Police, Gondia, seeking information about the antecedents of the petitioner. The Superintendent of Police, Gondia, by letter dated 11th July, 2013, informed the respondent no.3 that the petitioner was acquitted on 15th May, 2011 of the offence under Section 12A of the Maharashtra Prevention of Gambling Act and it is only on the basis of that letter of the Superintendent of Police, respondent no.3 issued the impugned order dated 15th February, 2014 cancelling his appointment. Thus, the cause of action partly arose because of these events occurring in Gondia district. After all, cause of action is a bundle of several facts, one or the other or all taken together constitute a cause of action. We, therefore, hold that part of the cause of action occurred in the district of Gondia.
In A.B.C. Laminart Pvt. Ltd. and another Vs. A.P. Agencies, Salem [AIR 1989 SC 1239], the Supreme Court stated thus about the cause of action:-
âA 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 a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. 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 evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But 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 the plaintiff.â
9. It is, thus, clear to us that for the purpose of deciding whether facts averred by the 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 suit/petition. Nevertheless it must be a part of cause of action, nothing less than that.
10. As elaborated above, we find that the petitioner has clear cut cause of action in the instant case because the cancellation order impugned was made by the respondent nos. 2 and 3 acting only on the basis of the letter of Superintendent of Police, Gondia, which emanated from Gondia on 11th July, 2013. That is the only reason for cancellation of his appointment. Thus, we are, on the facts of the present case, fully sure that the petitioner has a cause of action within the territorial jurisdiction of this Bench.
11. That apart, there is another reason why this Court has territorial jurisdiction to entertain the present Writ Petition. Clause (2) of Article 226 of the Constitution of India, after its amendment, lastly used the words ânotwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. That means, the residence or location of respondents or the defendants in the petition/suit. We have already held earlier that the residence or location of the petitioner is not relevant to institute a petition, but what is relevant from reading of the above is that even if the seat of Govt., or the authority or the residence of such person is not within the territory, the High Court will still have jurisdiction to issue a Writ even beyond its territorial jurisdiction, provided the cause of action, wholly or in part, arises within the territorial jurisdiction of such Court. To put it again, use of the word ânotwithstanding in this context means if the residence or location of authority/respondent herein is within the territorial jurisdiction, certainly this Bench has jurisdiction. It is in this context, we proceed to deal with the provision of Section 20, Civil Procedure Code. Section 20 reads thus:-
â20. Other suits to be instituted where defendants reside or cause of action arises.- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation - A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
12. Section 141, Civil Procedure and its Explanation reads thus:-
â141. Miscellaneous proceedings.- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Explanation. - In this section, the expression proceedings includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.â
It is, thus, clear that the provisions of Civil Procedure Code do not apply mutatis mutandis to the writ proceedings. That, however, does not mean that general principles relating to civil proceedings in a Civil Court would be ignored altogether. The writ Court would keep in view principles of the Code and exercise its discretionary power in the interest of justice. After all, the jurisdiction under Article 226 is not to deny the justice, but to do the justice.
13. Even though location or residence of the authority or defendant or respondent in the Writ Petition as a reason for entertaining a petition does not appear to have fallen for consideration, we find that the principles underlying or akin to Section 20 (a) or (b) of Civil Procedure Code can well be followed or pressed into service, to hold that if the respondents carry on business or reside or their subordinate offices are located within the territorial jurisdiction of this Bench, this Bench will have jurisdiction to entertain a Writ Petition. This view gets support from the earlier legal history we have stated that after the decision of Seven Judges in the case of Khajoor Singh [cited supra], the Parliament amended Article 226 and inserted Clause (2), since the effect of the Seven-Judge decision was that it was only the Delhi High Court which could issue a Writ against the Govt. of India and no other High Court in the country could do so, as the Seat of the Govt. of India was located in New Delhi. That is why the word notwithstanding in the last part of Clause 2 has been utilized which conveys that the location or residence of or the seat of Govt. or authority is also relevant for determining the territorial jurisdiction of the particular High Court. We think, looked from that point of view, the provision stated in Section 20 (a) and (b) and the principle set out therein should also be applied to the writ jurisdiction for entertaining a Writ Petition.
14. Apart from that, what we find is that the underlying object of the amendment by inserting Clause (2) in Article 226 of the Constitution was to remove considerable hardships to litigants from distant places. In the instant case, we find that the petitioner is a member of Scheduled Caste residing in a remote village in Sadak Arjuni Taluka falling in Gondia district. He is qualified to man the post for which he was selected. Obviously he is unemployed. The respondent no.2 is the Company fully owned by the Govt. of Maharashtra. It supplies electricity to entire State of Maharashtra which includes Vidarbha Region also, in which the village of the petitioner is located where also the Company supplies electricity at price. The respondent nos. 2 and 3 have subordinate offices, as envisaged by Explanation for âCorporation, in the district of Gondia, within the territorial jurisdiction of this Court. The Bench at Nagpur of the Bombay High Court is for entertaining the cases arising in the various districts of Vidarbha Region. The contention raised by respondent no.2 that the petitioner should go to Mumbai and file a petition at the Principal Seat of Bombay High Court at Mumbai, rather than the Bench at Nagpur, in our opinion, ignores these telltale facts that the petitioner is a poor villager residing at a remote place in Gondia district, who is unemployed and a member of Scheduled Caste, that he needs employment very badly to support his family and that he was also selected by the respondent no.2. We cannot be oblivious of the glaring fact that the cost litigation at Mumbai is higher than Nagpur and when it comes to the persons like the petitioner, it is unaffordable. Moreover, the distance between his place of residence and Mumbai, travel expenditure, expenditure for residence, food etc., at Mumbai for filing a case there, and then the hefty fees of Advocates at Mumbai cannot be ignored. The Bench at Nagpur, since petitioner is having cause of action within the territorial jurisdiction of Nagpur Bench, is the only Bench which must entertain his petition in the above factual background. It is painful for us to hear the objection about the territorial jurisdiction in the light of the plight of the unemployed persons from this region, that too by a Govt. Company. The objection raised by the respondent no.2 can only be described as pedantics and semantics and nothing more, to drive away the petitioner from the course of justice he is otherwise entitled to. We cannot allow this to happen. Hence we hold that for the aforesaid reasons, this Court has territorial jurisdiction to entertain the present Writ Petition. The decision of Division Bench of this Court in the case of VSP Acqua Mist Fire Pvt. Ltd., Nagpur Vs. Maharashtra State Electricity Transmission Co., Ltd., Mumbai [2010 (2) Mh.L.J. 575], cited by learned counsel for respondent no.2 has no application, since in the facts of the said case, the cause of action even remotely or by fraction did not arise within the jurisdiction of this Bench, which is not the case at hand.
15. Having disposed of the objection about the territorial jurisdiction as above, we now proceed further to deal with the matter.
16. It is not in dispute that the petitioner was prosecuted in Crime No. 56/2008 for offence under Section 12A of the Maharashtra Prevention of Gambling Act, and in Summary Case No. 2134 of 2009, he was acquitted by the Judicial Magistrate First Class by Judgment and Order dated 15th May, 2011. It is thereafter, 6974 vacancies were advertised by respondent no.2 and applications were called till 30th June, 2012. In response thereto, petitioner applied on 19th June, 2012, obviously after his acquittal from the criminal case. He then filled the attestation form and left Column No.11 thereof unfilled. The objection raised by learned counsel for respondent no.2 is that there was a deliberate attempt on the part of petitioner in suppressing the fact of his prosecution, which must result into his disqualification for employment and, therefore, the impugned order of cancellation was rightly issued. In support of this, he relied on an order of this Court [Aurangabad Bench] in Writ Petition No. 8388 of 2013, dated 27th January, 2014. Learned counsel for the petitioner, per contra, has cited several decisions and we think that the Supreme Court decisions should be an answer to the submission of the respondent no.2. In T.S. Vasudavan Nair Vs. Director of Vikram Sarabhai Space Centre and others [cited supra], the Apex Court held nondisclosure of conviction during emergency for shouting slogans was held to be not enough to deny employment to the petitioner therein.
17. From the Judgment delivered by Supreme Court in Commissioner of Police, Delhi and another Vs. Dhawal Singh [cited supra], we quote para 6, which reads as follows:-
â6. Learned counsel for the appellants has drawn our attention to a judgment rendered by a Bench of this Court on 4.10.1996 in Delhi Admn. v. Sushil Kumar. On the first blush, that judgment seems to support the case of the appellants but there is a material difference between the two cases. Whereas in the instant case, the respondent has conveyed to the appellant that an inadvertent mistake had been committed in not giving the information against the relevant column in the Form much before the cancellation of his candidature, in Sushil Kumar case no such correction was made at any stage by the respondent. That judgment is, therefore, clearly distinguishable on facts.â
18. In the case at hand, we find an averment in the petition that the petitioner himself disclosed to the Police Station Officer by supplying the copy of Judgment of acquittal, which information was ultimately forwarded to the Superintendent of Police. In Regional Manager, Bank of Baroda Vs. Presiding Officer, Central Govt. Industrial Tribunal and another [cited supra], the Apex Court found that after his acquittal from the case, he was entitled to be reinstated in service, though without back wages but as a fresh employee. We quote the following portion from para 8 of the said judgment:-
â8. ..................................
.........In that view of the matter, once the High Court ultimately acquitted the respondent for any reason, with which strictly we are not concerned, the net result that follows is that by the time the Labour Court decided the matter, the respondent was already acquitted and hence there remained no real occasion for the appellant to pursue the termination order. Consequently, that was a sufficient ground for not visiting the respondent with the extreme punishment of termination of service. But even that apart, though the conviction was rendered by the Sessions Court on 20-2-1979, the show cause notice for the first time was issued by the appellant after one year i.e. on 26-2-1980 and thereafter the termination order was passed on 18-4-1983. That itself by the passage of time created a situation wherein the original suppression of involvement of the respondent in the prosecution for an offence under Section 307 of the Indian penal Code did not remain so pernicious a misconduct on his part as to visit him with the grave punishment of termination from service on these peculiar facts of the case and especially when the Labour Court also did not award any back wages to the respondent from 1983 till the respondent's reinstatement by its order dated 29-9-1995 and one month thereafter and when the High Court also did not think it fit to interfere under Article 226 of the Constitution of India on the peculiar facts of this case. ...â
19. That apart, as a policy decision, the Govt. has issued a Resolution dated 13th June, 1988, Paragraph [ठ] of which shows that only in case of conviction for moral turpitude or violence, the employment should be denied; otherwise the same should be granted. In this case, the petitioner was acquitted of the charge under Section 12A of the Maharashtra Prevention of Gambling Act. The offence for which he was charged and acquitted did not constitute even the above.
20. To sum up, the said policy decision of the Govt. dated 13th June, 1988 vide Govt. Resolution No. पà¥à¤à¤à¤¸à¥-०287/1892(1)/पà¥à¤²-5 ठissued by Home Department is in consonance with the pragmatic approach required in such matters rather than denying justice to the people by raising hyper technical objections. In the case at hand, it is clear that the petitioner had not disclosed in Column 11 that he was prosecuted. The first reason is that since he was acquitted well before he filled application form and that must have made him to leave the said column no.11 blank and, therefore, we do not find anything wrong with him in doing so. At that time, the petitioner must have had an apprehension in mind that a valuable opportunity of employment would be denied to him by respondent no.2 by resorting to the answer against Column No.11 even though he was acquitted of the said offence a few years before. We do not find anything wrong with what the petitioner has done by keeping Column No.11 blank. In our opinion, Column No.11 itself should not be read as a mere form, but must be read in substance. Reading of Column No.11 in substance, to our mind, in the facts of the present case, clearly shows that the petitioner committed no mistake or no suppression by not giving an answer to Column No.11, because he was already acquitted a few years before he applied for the post. On the contrary, in our opinion, Column No.11 needs proper rectification, since the Govt. Departments/Agencies are utilizing this Column No.11 for denying justice to the people rather than doing justice to them; and they are also not considering that upon conviction, that too for moral or violent conduct, the employment can be denied. To sum up, we do not find any reason to deny relief to the petitioner on any count. The order dated 27th January, 2014 made by Aurangabad Bench of this Court at in the case of Haresh Pandit Chaudhari does not show any consideration of the legal position set out by us above.
21. In the result, we make the following order:-
ORDER
[a] Writ Petition No. 3253 of 2014 is allowed.
[b] Rule is made absolute in terms of Prayer Clause [i].
[c] The petitioner shall be appointed to the post of Assistant Electrician within a period of one-and-half-month from today.
[d] In case the petitioner is not appointed as above, the respondent nos. 2 and 3 shall pay regular salary to the petitioner with effect from 01st February, 2014.
[e] Copy of this Judgment be sent to the Chief Secretary, Govt. of Maharashtra, Mantralaya, Mumbai, with reference to Paragraphs 19 to 20 above.