A.R. DILIPKUMAR v. AIRPORTS AUTHORITY OF INDIA and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 9[TH] DAY OF DECEMBER 2021 / 18TH AGRAHAYANA, 1943** **WP(C) NO. 1025 OF 2021** ## **PETITIONER/S:** A.R.DILIPKUMAR AGED 58 YEARS S/O. RAMAKRISHNAN NAIR, NOW WORKING AS DGM (ATM), EMP. 10003479, TRIVANDRUM, RESIDING AT SANDRAM, CHENAPARAMBU, FAROKE, CALICUT, 673 631. BY ADV K.B.PRADEEP ## **RESPONDENTS:** 1 AIRPORTS AUTHORITY OF INDIA REPRESENTED BY CHAIRMAN, CHQ, A BLOCK, RAJIV GANDHI BHAVAN, SAFDARJUNG, NEW DELHI 110003. 2 THE EXECUTIVE DIRECTOR, (ATM), AIRPORTS AUTHORITY OF INDIA, CHQ, A BLOCK, RAJIV GANDHI BHAVAN SAFDARJUNG NEW, DELHI 11003. 3 GENERAL MANAGER, ATM, CIVIL TRAINING COLLEGE (CATC), 12/91 A, LAL BIHARA, BAMRULI AIRPORT AREA, BAMRAULI, PRAYAGRAJ UTTAR PRADESH 211 012. 4 THE GENERAL MANAGER, AIR TRAFFIC MANAGEMENT ATM, WESTERN REGION, AIRPORTS AUTHORITY OF INDIA, MUMBAI 400099. 5 THE GENERAL MANAGER (AR), AAI, AIRPORTS OF INDIA, RAJIV GANDHI, BHAVAN, SAFDARJUNG AIRPORT NEW DELHI 11003. BY ADV SRI.V.SANTHARAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.11.2021, THE COURT ON 9/12/2021 DELIVERED THE FOLLOWING: W.P.(C)No.1025/2021 2 ## **JUDGMENT** The writ petitioner is currently working as the Joint General Manager(ATM) at Trivandrum International Airport managed by the first respondent Airports Authority of India. He had worked as an instructor at the National Institute of Aviation, Training And Management (NIATAM) in Maharashtra during the period 2016-17. The petitioner laments that during the period 2016-17, he was granted only a reduced performance related pay on the ground that his score was low to fetch a high PRP (performance related pay) for the year 2016-17. On his enquiry, it was found that, the low marks was given by the third respondent, who was the General Manager ATM and according to the petitioner, he never had occasion to see the performance of the petitioner or to interact with him. Hence, he has no jurisdictional control over the administrative privacy of the petitioner. Challenging Ext.P1, which was his managerial performance and competence assessment form, on the ground that it was wrongly evaluated, the petitioner has approached this Court. An ancillary relief was sought to direct the 4[th] respondent, the General Manager, Western Region, Airport Authority of India, to consider the performance related pay of the petitioner during the period 2016-2017 afresh after complying with all procedures. 2. Respondents appeared and filed a detailed counter affidavit through the Airport Director, Airport Authority of India contending, inter alia, that the writ W.P.(C)No.1025/2021 3 petition was not sustainable since this court lack territorial jurisdiction to try the matter. It was contended that, petitioner had worked within the jurisdiction of High Court of Maharashtra during the relevant period wherein he was evaluated and assessed. The cause of action arose while he was working at Maharashtra. The third respondent against whom, a specific relief was sought, is residing at Uttar Pradesh. The repeated representations sent by the petitioner at Trivandrum and the reply received by him at Trivandrum will not confer any cause of action, so as to attract the jurisdiction of this court. Repeated representations sent by the petitioner directly or otherwise, to various departments/officers of AAI stationed outside Kerala and mere fact that the petitioner at present is working at International Airport, Trivandrum will not lay any stretch of law to give territorial jurisdiction. Hence, no cause of action, wholly or in part, have arisen within the jurisdiction of this court. The respondents sought dismissal of the writ petition on the ground of lack of jurisdiction. 3. On the ground of maintainability, both sides were heard in extenso. 4. To sustain the contention of lack of jurisdiction, the learned counsel for the respondents contended that, as pleaded in the objection, no cause of action, either in whole or in part had arisen within the jurisdiction of this court. The petitioner had worked during the relevant period at Maharashtra. His assessment was conducted there and Ext.P1 was prepared there. The officer against whom he allegedly raised complaint was a resident of Uttar Pradesh. Hence, the only basis, on which the cause of action was sought to be brought W.P.(C)No.1025/2021 4 within the territorial jurisdiction of this Court, was on a premise that the petitioner was transferred to Trivandrum, that thereafter he worked there and repeated representations were submitted by him from Trivandrum. Replies were also received by him in Trivandrum. According to the respondents, that was not sufficient to constitute cause of action. 5. To substantiate the above contention, the learned counsel for the petitioner specifically relied on the decision of the Supreme Court in _**Oil and Natural Gas Commission v. Utpal Kumar Basu And Others (1994) 4 SCC**_ _**711)**_ , wherein the petitioner company had claimed jurisdiction on the ground that the company which had its registered office at Calcutta had read the advertisement published by the ONGC inviting tenders at Delhi, at its office at Calcutta. The tender was sent to Delhi from Calcutta and representations made were from Calcutta. Non consideration of tender on the ground of its ineligibility would not constitute an integral part of the cause of action. Rejecting the above contention, the Supreme Court held that, the mere fact that the writ petitioners therein had send fax messages from Calcutta and received a reply thereto at Calcutta or that the tender was read at Calcutta and the tender was submitted from Calcutta will not constitute an integral part of cause of action. Hence, it was held that the writ petition was not sustainable at Calcutta. ## 6.In _**Nakul Deo Singh v. Deputy Commandant(1999 (3) KLT 629 ( FB),**_ the Full Bench of this court had occasion to consider the identical situation. In that, jurisdiction was sought to be brought within the territorial jurisdiction of Kerala on the ground that the order of the appellate authority which was under W.P.(C)No.1025/2021 5 challenge was communicated while the petitioner was in Kerala. Rejecting this contention, the Full Bench relied in extenso the above concept. Referring to the decision of the Supreme Court in _**State of Rajasthan v. M/s. Swaika Properties ( AIR 1985 SC 1289),**_ the Full Bench held that the above decision and all the decisions subsequent thereto establish that receipt of communication by itself does not constitute a fact in the bundle of facts constituting a cause of action. At best, receipt of the order or communication only gives the party a right of action, based on the cause of action, arising out of the action complained of. When that action complained of, take place outside the territorial jurisdiction of the High Court and an appeal is 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 the writ petition cannot be invoked to sustain the writ petition within Kerala on the basis that part of cause of action has arisen within the jurisdiction of Kerala . Explaining the danger involved in accepting the argument that situs of the receipt of the order will determine the jurisdiction, the court concluded that it can lead to a position where a litigant would be in a position to choose his own court for the purpose of redressal of his grievance. All that he need to do is to move over a particular place for receiving the communication from the appellate authority and then approach the High Court of that place with a plea that the court had jurisdiction because of the order of the High Court. It was held that no litigant can have a right to choose the court for seeking relief and mere introduction of clause 2 of Article 226 does not alter that position. Distinguishing between the W.P.(C)No.1025/2021 6 cause of action and the right of action, the court referred to various decisions and held that the right of action cannot confer jurisdiction whereas it is a cause of action that determine their jurisdiction. It seems that same view was followed in another Full Bench decision of this court in T _**he Registrar, Indian Maritime University East Coast Road v. K.G.Viswanathan(2014 (4) KLT 798) (FB)**_ . To further supplement it, the learned counsel relied on the decision reported in _**Dental Council of India v. Viswanath ( 2018 (3) KLT 255(FB)**_ 7. In reply to the above contention, the learned counsel for the writ petitioner referred to Nakul Deo Singh's case (supra). The learned counsel specifically referred to Paragraphs 13 and 17 of that case wherein the question that was posed by the petitioner was considered. According to the learned counsel for the petitioner, his evaluation and low evaluation and the consequent reduction in PRP, was challenged by him by submitting representation from Trivandrum. It was rejected and thereby the consequences of that order fell on him at Trivandrum. This according to the learned counsel, is sufficient to constitute a cause of action forming part of the bundle of facts, which confer jurisdiction on a Court. In this regard, the learned counsel referred to the various decisions referred by the Full Bench in Nakul Deo Singh's case (supra). The Full Bench had, while considering this issue, referred to a catena of High Court decisions. In all the cases the contention set up was that, when a Government servant challenges the order against him, it was not sufficient to establish that the order of termination was made, the Government servant should further prove that the consequences of that order fell on him. The W.P.(C)No.1025/2021 7 factum of passing of the order by itself cannot afford him a ground to claim relief at the hands of the court. However, a close reference to all the decisions referred to by the Full Bench shows that after referring to the several decisions referred by the Full Bench, ultimately the above contention was rejected impliedly by the subsequent paragraphs in the light of the observations made by the Supreme Court in State of Rajasthan v. Swaika Properties (cited supra). 8. Evidently, the petitioner cannot bank on that part of the decisions to support his claim. In fact, the whole reading of the Full Bench decision referred to above clearly laid down the law that mere receipt of communications and even assuming that the burden fell on him, was not sufficient to constitute cause of action and thereby to confer jurisdiction. 9. In the result, the preliminary objection raised by the second respondent is sustainable. Accordingly, the preliminary objection of the second respondent is accepted and it is held that this court has no territorial jurisdiction to consider the writ petition. The writ petition is closed as one without jurisdiction, however, this will not preclude the writ petitioner from seeking appropriate reliefs and raise all contentions before the competent court and also to explain the delay in approaching that court on the ground of pendency of the proceedings before this court. Sd/- ## **SUNIL THOMAS** ## **Judge** dpk W.P.(C)No.1025/2021 8 ## **APPENDIX OF WP(C) 1025/2021** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE PERFORMANCE AND COMPETENCE ASSESSMENT FOR THE PERIOD OF 08.08.201631.03.2017. - EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 31.10.2018. - EXHIBIT P3 TRUE COPY OF THE REPRESENTED ADDRESSED TO GM (HR) AAI DATED 10.01.2019. - EXHIBIT P4 TRUE COPY OF THE INFORMATION REGARDING THE REPORTING OFFICER DATED 17.02.2020. - EXHIBIT P5 TRUE COPY OF THE REPRESENTATION FOR REVIEWING THE PMS DATED. 20.07.2019. - EXHIBIT P6 TRUE COPY OF THE COMPLAINT TO THE GRIEVANCE CELL OF THE AIRPORT AUTHORITY OF INDIA DATED 01.10.2019. - EXHIBIT P7 TRUE COPY OF THE GRIEVANCE PRESENTED BEFORE THE MEMBER (ANS) DATED 11.11.2019. - EXHIBIT P8 TRUE COPY OF THE REPRESENTATION TO THE CHAIRMAN, AAI DATED 03.01.2020. - EXHIBIT P9 TRUE COPY OF THE REPRESENTATION MAKE TO THE MEMBER HR DATED 27.07.2020. - EXHIBIT P10 TRUE COPY OF THE REPLY ISSUED DATE 13.05.2020. - Exhibit P11 TRUE COPY OF THE COMMUNICATION DATED 25/3/2021 ISSUED BY THE 5TH RESPONDENT - Exhibit P12 TRUE COPY OF THE GUIDELINE DATED 28/3/2014 W.P.(C)No.1025/2021 9 EXT.P13: COPY OF THE REPRESENTATION DATED 31/10/2018 EXT.P14: COPY OF THE REMINDER DATED 1/10/2019 RESPONDENTS EXHIBITS: EXT.R1(A): COPY OF THE REPORTING/REVIEWING OFFICER FOR PMS FOR THE YEAR 2016-17 ISSUED BY NIATAM EXT.R1(B): COPY OF THE REPLY F.NO.AAI/311/2021-HR/424 DATED 25/3/2021 ALONG WITH THE CORPORATION HRM CIRCULAR NO.13/2014 DATED 28/3/2014.