EX.NO.E/380309 L/NK K.T.SUDHARSHANAN v Union of India and The Director General of Assam Rifles

## **"CR"** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **&** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY ,THE 28TH DAY OF SEPTEMBER 2018 / 6TH ASWINA, 1940** **WA.No.1716 of 2018** **AGAINST THE ORDER IN W.P.(C) NO.21383/2017 DATED 29.06.2018** ## **APPELLANT/PETITIONER:** **EX.NO.E/380309 L/NK K.T.SUDHARSHANAN, S/O.THANKAPPAN, KAIMURIYIL HOUSE, VAIKOM, PATTASSERY P.O., KOTTAYAM - 686 606.** **BY ADVS. REKHA VASUDEVAN DEEPA MAHESH** ## **RESPONDENTS:** **1 UNION OF INIDA REP. BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, SOUTH BLOCK, NEW DELHI - 110 001 2 THE DIRECTOR GENERAL OF ASSAM RIFLES, DIRECTORATE GENERAL ASSAM RIFLES, UPAO BRANCH, (NE-III), SHILLONG 793011** **BY ADV. SRI.M.C.MONY, CGC** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **JUDGMENT** ## **Devan Ramachandran, J.** Often, while addressing objections relating to territorial WA.No.1716 of 2018 2 jurisdiction, Courts are caught in a dilemma if its natural endevour ought to be to strain to find a cause to establish jurisdiction or to reject claims out-right for ex-facie lack of such jurisdiction. The Court's quandary becomes exacerbated in matters impelled by litigants with limited financial resources or who are close to penury and therefore, unable to approach other High Courts or Forums. 2. This case before us certainly has caused this angst in us ; but we will not decide the issue edificed merely on sympathy and we proceed to examine if the writ petition, filed by the appellant herein, would obtain feet to stand in this Court or if it will have to be re-presented or filed in another High Court, as concluded by the learned Single Judge. 3. Stated pithly, the issue in question is whether the appellant, who worked in the Assam Rifles in Shillong and who was discharged from service on medical reasons, can file a writ petition seeking Disability Pension before this Court. 4. The learned Single Judge found the petitioner not to obtain locus in this Court and directed the Registry to return the writ petition to the appellant with the following short order : "In view of my judgment in W.P.(C) No.13744 of 2018 the WA.No.1716 of 2018 3 ## Registry is directed to return the writ petition for presenting the same before the appropriate forum." 5. The appellant asserts that the learned Judge has erred in doing so and we will presently assess if he is right or wrong in so asserting. 6. The appellant impugns the afore-extracted order, dated 29.6.2018, in W.P(C)No.21383/2017 wherein, as is luculent therefrom, the Registry of this Court has been directed to return the writ petition for being presented “before the appropriate forum”. The appellant submits that the learned Judge is in error in ordering so since, according to him, a writ petition can only be filed before this Court and not before any other Forum, including the Central Administrative Tribunal and that if, on the contrary, the view of the learned Judge is construed to be that it has to be filed before another High Court, within whose territorial jurisdiction the Assam Rifles is situated, then such view is also legally untenable because, the cause of action shown by him has arisen in Kerala. 7. We have heard Smt.Rekha Vasudevan, the learned counsel appearing for the appellant and Sri.M.C.Mony, the learned Central Government Counsel appearing for the respondents. WA.No.1716 of 2018 4 8. We notice from the papers on record that the conclusion on jurisdiction ; or the lack of it, entered into by the learned Single Judge in the impugned order, was so entered even without any objection being raised by the respondents either as to territorial jurisdiction of this Court or as to the jurisdiction being vested in another Forum. The learned Single Judge appears to have taken a view that the writ petition will have to be filed in an appropriate forum, thereby to mean that it is either before the CAT or before another High Court. 9. We notice that the claim of the appellant has been made against Assam Rifles and since we are told by both sides that it is not a notified establishment under the Administrative Tribunals Act, it may be safe for us to conclude that the writ petition cannot be filed before the CAT as an original application. 10. The only surviving question, therefore, is whether the appellant would obtain the locus to file this writ petition before this Court or whether he should be driven to the High Court at Meghalaya, where concededly he had worked and from where he had been discharged from. 11. Before we answer this, a quick glance to the essential WA.No.1716 of 2018 5 facts may be necessary. 12. The appellant was recruited to Assam Rifles and he was enlisted on 2.7.1986 ; however, later invalidated from service, with effect from 31.10.1998, on medical grounds. He asserts that he was affected with Malignant Tertian Malaria in the year 1994 and that even though he was treated with antimalarial medicines, his condition deteriorated, leading to hearing loss, Tinnitus and hepatosplenomegaly. He says that the debilitating medical condition led to his discharge in the year 1998 and that he was, therefore, entitled to Disability Pension under the CCS (EOP) Rules. However, the concerned Authorities, as per the appellant, sanctioned him only the invalid pension, which is mere Rs.1,275/- per month and that he, therefore, made a representation to the competent officials seeking Disability Pension, which, however, was rejected through Ext.P4, which order was communicated to him in his address in Kerala. 13. The appellant says that after he was discharged from service, he had no financial resources to continue to live in Meghalaya and therefore, that he was constrained to come to Kerala. His contention is that since Ext.P4 was communicated WA.No.1716 of 2018 6 to him in his address in Kerala and since his entitlement to pension, if granted, will lead to the same being paid in Kerala, substantial part of the cause of action in this writ petition arises in Kerala. He thus predicates that the view of the learned Single Judge in the impugned order cannot be forensically sustained. 14. We have considered the submissions made by Smt.Rekha Vasudevan on behalf of the appellant and we are of the view that it has substantial force, warranting our close look into the applicable provisions. 15. It is now well established that under Article 226(2) of the Constitution of India, writ jurisdiction can be exercised by any High Court, if any part of the cause of action, wholly or in part, arises within its territorial limits. Therefore, the singular question before us is whether the appellant is able to demonstrate any cause of action to have arisen within Kerala or within the territory to which this Court has jurisdiction, and if the answer to this is to the affirmative, then the writ petition becomes maintainable and the order of the Single Judge will have to be vacated. Needless to say, if the answer is to the contrary, we will have to affirm the order of the learned Single Judge. WA.No.1716 of 2018 7 16. The law in this area is now well beyond doubt through a catena of judgments, most of which have, in fact, been referred to by the appellant in his pleadings itself. We notice that in analogous factual circumstances, this Court has, in **Paul** **v. Border Security Force** [2000 (3) KLT 112], which was delivered by a learned Judge after distinguishing a Full Bench judgment of this Court in **Nakul Deo Singh v. Deputy Commandant** [1999 (3) KLT 629 (F.B.)], concluded affirmatively that this Court has jurisdiction to entertain writ petitions even if the appellant is entitled to benefits of pension to be issued by Authorities outside the State. The learned Judge concluded that in so far as the benefit of obtaining pension, when the petitioners are residing within the jurisdiction of this Court, is denied by the respondents, it can be said that part of the cause action arises within the jurisdiction of this Court. 17. Similarly, in **Pillai.K.D v. Chairman cum Managing** **Director, Oil and Natural Gas Corporation** [2008 (3) KHC 810], a Division Bench of this Court declared the law as under: “The appellant's case is that if the appeal filed against the judgment in his favour was heard along with it, it would have covered. After the disposal of the above appeal, in appellant's case a review petition was filed. In the Review Petition, the judgment was WA.No.1716 of 2018 8 recalled and the present impugned judgment was passed dismissing his petition. Consequently, Writ Appeal filed by the respondents in the appellant's case become infructuous. The Original Petition was dismissed only because of lack of jurisdiction. The learned single Judge held that no part of the cause of action arose within the State of Kerala and therefore, this court cannot exercise its jurisdiction. Various decisions were also cited in the judgment. But those orders were regarding actions taken while the petitioners were working elsewhere other than the State in which the High Court was situated. But this is a case only regarding pension. The pension is receivable at the place where the employee resides after the retirement. The pensioner cannot be asked to reside in the place from where he retired from service and also cannot be asked at the old age to go and seek reliefs from the State where he was working at the time of retirement. This aspect also has to be taken into account. Here the petitioner is now aged above 70. It cannot be said that since the respondents head office is at Deradun, he should go and file petition at Deradun or in the State from where he retired from service. We are of the opinion that he is entitled to receive his pension at his native place, namely, Kerala State where he is residing after retirement. Actually, the cause of action is non receipt of pension which arose within the jurisdiction of this Court.” 18. This view has been, thereafter, followed by this Court in several cases and in fact, all these judgments draw inspiration from the judgment of the Hon'ble Supreme Court in **Nawal Kishore Sharma v. Union of India and others** [(2014) 9 SCC 329], wherein the Hon'ble Court noticed that the petitioner therein had submitted his representations seeking disability compensation from his native place in Bihar and that the rejection order was also served on him at his native place in WA.No.1716 of 2018 9 Bihar; and hence concluded that a part of the cause of action arose within the jurisdiction of the Patna High Court. Paragraph 17 of the said judgment declares this position without any doubt and we, therefore, feel it apposite to extract it as under : "17. We have perused the facts pleaded in the writ petition and the documents relied upon by the appellant. Indisputably, the appellant reported sickness on account of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment. Finally, the respondent permanently declared the appellant unfit for sea service due to dilated cardiomyopathy (heart muscle disease). As a result, the Shipping Department of the Government of India issued an Order on 12.4.2011 cencelling the rgistration of the appellant as a seaman. A copy of the letter was sent to the appellant at his native place in Bihar where he was staying after he was found medically unfit. It further appears that the appellant sent a representation from his home in the State of Bihar to the respondent claiming disability compensation. The said representation was replied by the respondent, which was addressed to him on his home address in Gaya, Bihar rejecting his claim for disability compensation. It is further evident that when the appellant was signed off and declared medically unfit, he returned back to his home in the district of Gaya, Bihar and, thereafter, he made all claims and filed representation from his home address at Gaya and those letters and representations were entertained by the respondents and replied and a decision on those representations were communicated to him on his home address in Bihar. Admittedly, the appellant was suffering from serious heart muscle disease (dilated cardiomyopathy) and breathing problem which forced him to stay in his native place, wherefrom he had been making all correspondence with regard to his disability compensation. Prima facie, therefore, considering all the facts together, a part or fraction of cause of action WA.No.1716 of 2018 10 arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation. " 19. As we have indicated above, the appellant's claim is for Disability Pension and he says that the action of the respondents in having given him only invalid pension is illegal and unlawful. It is conceded that he was working in Shillong and that he was discharged from there; but it is asserted that he was forced to return to his home town in Kerala, after such discharge, since he had no financial resources to continue in Shillong. His request for Disability Pension was made from Kerala and it was rejected through Ext.P4, which was communicated to him in Kerala. If the request had been granted, then obviously the pension would also have been paid in Kerala, into a bank account or by such other mode as is known to law. 20. Ineluctably, therefore, we are in affirmation of the judgments cited above and we have no doubt that in such cases, the cause of action; if not whole, at least in part; arises in Kerala and we fail to understand how it can be said that a writ petition to enforce such a right cannot be filed before this Court. To add to this, the respondents never objected to the filing of the writ petition before this Court and they had not WA.No.1716 of 2018 11 filed any pleadings on record objecting to the exercise of jurisdiction by this Court, even as a preliminary issue. 21. The above being said, we are cognizant that Sri.Mony, the learned CGC supports the view of the learned Single Judge citing the judgment of a Full Bench of this Court in **Dental Council of India (DCI) v. Dr.V.Viswanath and others** [2018 (3) KHC 143]. In fact, this was a judgment that is delivered by a Bench in which one among us (Justice Devan Ramachandran) was also a member. The issue raised in that case was whether the challenge to the nomination of members to the Dental Council of India, by the Government of India, would be amenable to the writ jurisdiction in Kerala. The view of the Full Bench was that since the impugned nominations were made by the Government of India based solely on the result of the elections held in Delhi, the same could be struck down only if the elections are set aside and, therefore, that the cause of action would consequently arise only in Delhi. It was not a case where there was any claim that a part of the cause of action, with respect to the elections conducted in Delhi, arose in Kerala. We, therefore, cannot find the facts of this case to be analogous or similar, to the facts noticed by the learned Full WA.No.1716 of 2018 12 Bench. 22. In such view of the matter, we are unable to offer our imprimatur to the view of the learned Single Judge and we are constrained to hold, being without any other option, that the impugned order cannot find forensic sustenance, going by the provisions of Article 226(2) of the Constitution of India. In the result, this appeal is allowed. The impugned order is vacated and the Registry is directed to place the writ petition as per roster for further consideration. ## **Sd/- P.R.RAMACHANDRA MENON JUDGE** stu **Sd/- DEVAN RAMACHANDRAN JUDGE** //True copy// P.A.to Judge.