JUDGMENT

Shaffique, J.

The writ appeal is filed by the petitioner in O.P 25142/1998 challenging the judgment of the learned Single Judge dismissing the writ petition on the ground that this Court had no territorial jurisdiction to entertain the writ petition as no part of the cause of action had arisen within the jurisdiction of this court.

2. The facts involved in the writ petition disclose that the appellant while working as Asst. Manager of the 1st respondent bank at Coimbatore was served with two charge sheets for certain misconducts. The enquiry officer found that the charges were not fully proved. But the disciplinary authority dismissed the appellant from service based on further appreciation of evidence. Though an appeal was filed, the same came to be dismissed and further review also ended in dismissal. It is challenging the proceedings of the dismissal that the writ petition is filed. The impugned orders are Ext. P1, the suspension order, Ext.P13, the order passed by the disciplinary authority dismissing the appellant from service, Ext.P16, order of the appellate authority and Ext.P20, the order in review.

3. The first respondent bank raised a preliminary objection inter alia contending that all disciplinary proceedings in relation to the appellant were taken outside the jurisdiction of this Court and no part of the cause of action had arisen within the jurisdiction of the State of Kerala.

4. According to the appellant, though he was employed at Coimbatore when the alleged incident occurred resulting in the memo of charges and the enquiry was held at Coimbatore, in view of the fact that the petitioner received the order of dismissal from service Ext.P13, at his last known address at Kottayam in the State of Kerala, part of the cause of action had arisen within the jurisdiction of this Court. Reliance was placed on Article 226(2) of the Constitution of India which inter alia indicates that if whole or part of cause of action had arisen within the jurisdiction of the Court, the said Court will have jurisdiction to entertain the writ petition.

5. The learned Single Judge relied upon a Full Bench judgment of this Court in Naik Nakul Deo Singh v. The Deputy Commandant, CISF, Kottayam [1999 (3) KLT 629], especially paragraph 21 of the said judgment and had come to the conclusion that place of service of the order of dismissal by the disciplinary authority does not amount to a cause of action for invoking the jurisdiction of this court.

6. The appellant himself argued the case. The main contention urged by the appellant is that when the order of dismissal takes effect only on service of the order of dismissal to the employee, the place where the said order of dismissal become effective, forms part of a cause of action and therefore this court has jurisdiction to entertain the writ petition.

7. It is not in dispute that the order of dismissal Ext.P13 was served on the appellant at Kottayam in the State of Kerala. Therefore, the only point that requires to be considered in this appeal is whether service of notice of dismissal at a particular place will amount to a cause of action at that particular place.

The appellant relies upon the following judgments:

(i) State of Punjab v. Amarsingh Harika (AIR 1966 SC 1313) is a Constitution Bench judgment of the Supreme Court wherein it is held as under:

“It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned.

If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically, it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order”

The Supreme Court in Amarsingh Harika (supra) was considering the question as to whether dismissal of plaintiff from the service of the defendant was illegal, void and ultra vires on account of the fact that the order of dismissal was not served on the employee concerned. In that case, the Supreme Court approved the opinion of the High Court in holding that the order of dismissal passed against the plaintiff on 3rd June, 1949 could not be said to have taken effect until the plaintiff had come to know about it on the 28th May, 1951 as the plaintiff was informed about the said order only on 28 May, 1951 and held as under:

“An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned”.

(ii) Union of India v. P. Kunhabdulla (1985 (1) SLJ 471) is a Division Bench judgment of this Court. In this case a person who was working as Asst. Station Manager at Anbur, Madras was dismissed from service after conducting an enquiry. The order of dismissal was served on the said employee at Badakara in the State of Kerala. The question was whether High Court of Kerala had territorial jurisdiction to entertain the writ petition. The Division Bench after having considered the matter in detail held that part of cause of action to challenge the order of removal from service arises in the State where the order becomes effective by service on the employee. Therefore, when the impugned order is made by an authority in one State, but it becomes effective on service in another State, the High Court in the latter State shall also have jurisdiction as part of the cause of action arises within that State.

(iii) Umasankar Chatterjee v. Union of India (1982 Lab. I.C 1361) a Division Bench judgment of the Calcutta High Court, Modern Food Industries (India) Ltd. Ahammadabad v. M.D Juverkar (1989 Lab. I.C 224) a Division Bench of the Gujarat High Court, and Tapan Kumar Dalal v. Union of India (2003 Lab. IC 54) again a Division Bench judgment of the Orissa High Court are relied upon for the same proposition as held in P. Kunhabdulla (supra).

(iv) The judgment of the Supreme Court in Bipromasz Bipron Trading Sa v. Bharat Electronics Limited (Bel)) [(2012) 6 SCC 384] is relied upon further to contend that in respect of administrative orders it comes into effect against the party affected only when the order is communicated to the said party.

(v) In Kusum Ingots & Alloys Ltd. v. Union of India [(2004) 6 SCC 254], Supreme Court has considered the question relating to the place of accrual of cause of action as provided under Article 226(2) of the Constitution. Paragraphs 6, 9, 14 and 18 of the said judgment reads as under:

6. Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.

Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily”.

“9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts”.

“14. In State of Rajasthan v. Swaika Properties this Court opined that mere service of a notice would not give rise to any cause of action unless service of notice was an integral part of the cause of action. The said decision has also been noticed in Oil and Natural Gas Commission. This Court held: (SCC p. 223, para 8)

“The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action.”

“18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted.

Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court”.

8. On the other hand, the learned senior counsel appearing on behalf of the respondent-bank streneously relied upon the Full Bench judgment of this Court in Naik Nakul Deo Singh (supra) especially paragraphs 20 to 22 which reads as under:

“20. It appears to us that the decisions in Swaika Properties case and the decision of the Supreme Court and that of the High Court subsequent thereto clearly establish that the receipt of communication by itself does not constitute a fact in the bundle of facts constituting the 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 takes place outside the territorial jurisdiction of the High Court and an appeal therefore 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 Art. 226(2) of the Constitution cannot be invoked to sustain a Writ Petition in this High Court on the basis that a part of the cause of action has arisen within the jurisdiction of this court, merely because the appellate order communicated from the seat of the appellate authority was received while the petitioner was residing or working within the jurisdiction of this court Acceptance of the argument that the situs of the receipt of the order will determine the jurisdiction 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 do is to move over to a particular place for receiving the communication from the appellate authority and then approach the High Court of that place with a plea that that court had jurisdiction because the order of the appellate authority was served on him while he was residing within the jurisdiction of that High Court. No litigant can have a right to choose the court for seeking relief and the mere introduction of clause 2 of Art. 226 does not alter that position.

21. It is now settled after the decision of the Supreme Court in S.S Rathore v. State of M.P (AIR 1990 SC 10) that when there is an appeal against the original order even in a service dispute, there is a merger of the original order in the appellate order and the decision rendered by the appellate authority whether it be of dismissal, reduction, allowance or modification of the order of the original authority, a cause of action accrues to the aggrieved person to challenge the appellate order since the order of the original authority merges in the order of the appellate authority. What furnishes the cause of action is the rejection of the appeal by the appellate authority. Communication of that order though the order become effective only on such communication to the aggrieved person only furnishes the aggrieved person with a right of action. Receipt of the communication is not a fact in the bundle of facts constituting the cause of action. Even though only on receipt of the order the aggrieved person may be able to challenge that order, receipt of the order cannot be said to be a fact forming the cause of action. For, the cause of action arises on the appeal being dismissed by the authority outside the jurisdiction of the court. The fact that until an order is published or made known, the order does not became effective since it will be open to the authority to change his mind before releasing the order, is not a ground to hold that the communication of the order also forms part of the cause of action to the aggrieved person. 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 that dismissal when he is in his native place by being rendered jobless, is not a fact which constitutes the bundle of facts giving rise to a cause of action in his favour to challenge his dismissal. That right accrued to him earlier when he was dismissed from service outside the State and he lost his employment. Similarly, when an appeal is filed by him to an appellate authority who is outside the jurisdiction of this High Court and that appeal is dismissed by the appellate authority, the merger in the decision of the Appellate Authority takes place when the appeal is dismissed and not when the appellant receives the order. What a writ petitioner need plead as a part of his cause of action is the fact that his appeal was dismissed wholly or in part and not the fact that the order was communicated to him. That plea is relevant only to show when the right of action arose in his favour. The receipt of the order only gives him a right of action on the already accrued cause of action and enables him to meet a plea of laches or limitation raised in opposition. That the consequences of a proceeding in the larger sense are suffered by a person in his native place is not a ground to hold that the High Court within the jurisdiction of which the native place is situate is also competent to entertain a Writ Petition under Art 226 of the Constitution. When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant time and not in his native place to which he might have retired on his dismissal.

22. In the cases before us, consequences of the order of the original authority were suffered by the respective petitioners outside the State. One was dismissed and the other was reduced in rank. Thereafter they filed appeals before the appellate authority whose offices are in Delhi. One of the petitioners had come back to his native place in Trivandrum on his losing the job and from there, he received the copy of the order dismissing his appeal. In the other, after suffering reduction in rank from outside the State, the petitioner had obtained a transfer to the State within the jurisdiction of this court He had also suffered the punishment while he was outside the territory of this High Court. Merely because he was working in Kerala at the time when he received the copy of the appellate order dismissing his appeal cannot be said to be part of the cause of action to challenge the appellate order. In both these cases therefore we have no hesitation in holding that no part of the cause of action arose within the jurisdiction of this High Court. The objection raised in that behalf by the respondents is well founded”.

9. According to the learned senior counsel for the respondent this judgment had been relied upon by the Supreme Court in Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd., (2006) 3 SCC 658), to contend that the Full Bench judgment in Nakul Deo Singh (supra) is approved by the Supreme court. But it is relevant to note that the Supreme Court was considering the question regarding what constitutes cause of action in the light of section 138 of the Negotiable Instruments Act, and was not concerned with a similar factual situation. The Supreme Court was not considering the correctness or otherwise of the Full Bench judgment. According to the learned Senior Counsel, Kunhabdulla's case (supra) was impliedly overruled by the Full Bench, after taking into consideration the conflict between Kunhabdulla's case and another Division Bench judgment in Thomaskutty v. Union Of India [1994 (2) K.L.T 258]. According to the learned counsel, judgment in Thomaskutty's case (supra) was approved by the Full Bench thereby impliedly overruling Kunhabdulla's case.

10. Going by the judgments relied upon by either side, the short question that requires to be determined in the present appeal is whether, while serving the order of dismissal on the appellant at Kottayam in the State of Kerala, whether it forms part of a cause of action enabling the appellant to file a writ petition before this Court.

Article 226(2) of the Constitution of India reads as under:

226(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.”

Therefore service of the order of dismissal should be treated as part of the cause of action to maintain the above writ petition. The first contention urged by the appellant is that Kunhabdulla's case is not overruled by the Full Bench in Naik Nakul Deo Singh's and it is still good law.

11. The first question to be considered is whether Kunhabdulla's case has been overruled by the Full Bench in Naik Nakul Deo Singh's case. Kunhabdulla's case relates to service of an order of dismissal in the State of Kerala and this Court found that such service forms part of a cause of action. For arriving at such a conclusion, this Court observed that the order of dismissal become effective only by service on the employee. That proposition is undoubted on account of the law laid down by the Constitution Bench in Amarsingh Harika (supra). In Thomaskutty's case (supra), the facts would disclose that disciplinary proceedings in that case were conducted at Gurdaspur while the petitioner was working there and the Court Martial, conviction and sentence etc. concluded at that place. He filed a writ petition challenging the entire proceedings of the Court Martial by filing writ petition before the State of Kerala. This Court held that when the charges framed against the petitioner while he was in military service at Gurdaspur and when the Court Martial was conducted at Gurdaspur, he was found guilty and punishment was imposed at a place where Court Martial was held, and the Court Martial proceedings were served on him at the same place, the Court at that place alone will have territorial jurisdiction to entertain the said case. In that case the contention raised for maintaining the writ petition was that a notice regarding rejection of the appeal was served on the petitioner while he was in the Central Prison, Thiruvananthapuram and therefore he was entitled to file a writ petition in the State of Kerala. It was also contended that the Chief of Army staff, who had dismissed the appeal also had jurisdiction over Kerala. The Division Bench held that merely because intimation of the rejection of the appeal was forwarded to the petitioner, who was serving the sentence in Central Prison, Thiruvananthapuram, this Court cannot exercise its jurisdiction under Article 226 of the Constitution of India. In the Full Bench judgment in Naik Nakul Deo Singh's case (supra), a batch of original petitions were referred to the Division Bench by the learned Single Judge on expressing a view that there are apparent conflicts in the views expressed in the decisions in Kunjabdulla's case and Thomaskutty's case and hence the said conflict requires to be resolved.

12. Among the cases considered by the Full Bench, in O.P No. 11321/1995, the petitioner was working as a Head Constable in the Central Industrial Security Force in Bokaro Steel Plant and he was imposed with a punishment and the order of punishment was served on him at Bokara. He filed an appeal which was dismissed by the appellate authority and the copy of the order was served on him while he was working at Kottayam. He challenged the original order as well as the appellate order before this court. In O.P 12019/1995 also, the petitioner was served with an order of dismissal at New Delhi. He filed an appeal which was dismissed as belated. The appellate order was communicated to him at Thiruvananthapuram which was within the jurisdiction of this Court. He challenged the original order and the appellate order by filing original petition before this Court.

13. In paragraph 4 of the Full Bench judgment, this court observed as under:

“The question thus to be considered in these Original Petitions is whether on the facts stated above, this court has jurisdiction to entertain the Original Petitions filed under Article 226 of the Constitution of India”.

While considering the said issue, the Full Bench referred to various judgments prior to the 15 amendment which incorporated Article (1A), the effect of such amendment, the Seven Member Bench judgment of the Supreme Court in S.S Rathore v. State Of Madhya Pradesh. (A.I.R 1990 S.C 10). In fact, the Full Bench was considering the question as to whether the service of the appellate order or communication of the appellate order within the State of Kerala would give rise to a cause of action. The Full Bench after considering various judgments on the issue, observed in paragraph 12 as under:

“What is seen from the conflict as reflected above is that the question for consideration would be whether the fact that a decision rendered by an authority located outside the jurisdiction of this court is communicated to the party while he is within the jurisdiction of this Court is a fact in the bundle of facts constituting the cause of action. The view that the receipt of the copy of the order would constitute a fact giving rise to the cause of action is founded on the theory that an order becomes effective as regards the party when it is communicated to the party and since what he is aggrieved by an effective order it has to be held that the receipt of communication would also be part of the cause of action enabling the party to approach the High Court within the jurisdiction of which he was residing or working at the relevant time. The other view is founded on the fact that the mere service of the order is not a fact which is part of the bundle of facts constituting the cause of action and the cause of action arises when the appeal is dismissed by the appellate authority from the seat of the appellate authority. This difference in view point requires to be considered now”.

14. A reference is made by the Full Bench in W.W Joshi v. State Of Bombay* (AIR 1959 BOMBAY 363) and Damamal v. Union of India (AIR 1967 BOMBAY 355) and having taken note of the factual circumstances in the said case that the original order of dismissal was served on the employees concerned at a particular place, the Full Bench further observed that,

“It may have to be noted here straightaway that this particular limb is missing in the present cases since both the petitioners have already suffered the consequence of the decision outside the territorial jurisdiction of this Court though one of them came to this State as a consequence of the orders made against him and the other officer had already suffered the consequences outside the territory”.

Further in paragraph 9 of the judgment the Full Bench posed a question as under:

“What really arise for decision is whether the fact that on communication of the order it becomes effective as far as a person is concerned and gives him the right to approach the court for relief is really a fact which is part of the bundle of facts that constitute a cause of action”.

15. The Full Bench proceeds further and draws a distinction between cause of action and right of action. It is held that the decision in Swaika properties case (supra) and subsequent judgments established that receipt of communication by itself does not constitute as facts in the bundle of facts constituting cause of action and at best, receipt of the order of communication only gives a party a right of action based on the cause of action arising out of the action complained of. It could be seen that in the cases before the Full Bench the factual circumstances involved was dismissal of the appeal and the communication of the appellate order or rejection of the appeal and whether it constitutes a cause of action. It is in that view that the Full Bench relies upon S.S Rathore (supra) to indicate that when there is an appeal against the original order even in a service dispute, there is a merger of the original order in the appellate order and the decision rendered by the appellate authority whether it be of dismissal, reduction, allowance or modification of the order of the original authority, a cause of action accrues to the aggrieved person to challenge the appellate order since the order of the original authority merges in the order of appellate authority. It is further observed that,

“What furnishes the cause of action is the rejection of the appeal by the appellate authority. Communication of that order though the order may become effective only on such communication to the aggrieved person only furnishes the aggrieved person with a right of action. Receipt of the communication is not a fact in the bundle of facts constituting the cause of action”.

Apparently by making the above observation, the Full Bench was considering the question as to whether a cause of action arises when the appeal is dismissed or when it is communicated to the concerned person.

16. However the Full Bench observes further 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 that dismissal when he is in his native place by being rendered jobless, is not a fact which constitutes the bundle of facts giving rise to a cause of action in his favour to challenge his dismissal. That right accrued to him earlier when he was dismissed from service outside the State and he lost his employment”.

“When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant time and not in his native place to which he might have retired on his dismissal.”

This expression of view by the Full Bench without overruling the judgment in Kunhabdulla's case (supra) gives an indication that the Full Bench was considering the impact of service of notice in the appeal and not the factual circumstances relating to service of the original order of dismissal. In fact the observation “That right accrued to him earlier when he was dismissed from service outside the State and he lost his employment” indicates approval of Kunhabdulla's case (supra) whereas the observation “When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant time and not in his native place to which he might have retired on his dismissal” gives an indication of implied overruling of Kunhabdulla's case (supra).

17. Even assuming that the Full Bench judgment impliedly overruled Kunhabdulla's case, the argument of the petitioner is that relying upon the judgment of the Supreme Court in Amarsingh Harika and Kusum Ingots & Alloys Ltd. (supra), the Full Bench judgment cannot be relied upon as an authority for the proposition that service of order of dismissal does not amount to a cause of action.

18. In Kusum Ingots & Alloys Ltd. (supra) Supreme Court had occasion to consider the question as to what constitutes part of a cause of action and held that Art. 226(2) of the Constitution of India is in pari materia with Section 20(c) of the Code of Civil Procedure and the decisions of the Supreme Court rendered on interpretation of S. 20(c) shall apply to writ proceedings also. In the said judgment while considering question as to what is ‘wholly or in part’, the Supreme Court relied upon the earlier views expressed by the Supreme Court in Swaika Properties (supra) wherein it is held that mere service of notice does not give rise to any cause of action unless the service of notice was an integral part of the cause of action. Supreme Court also referred to the judgment in Oil and Natural Gas Commission v. Utpal Kumar Basu [(1994) 4 SCC 711)], wherein it is held that the answer to the question whether service of notice is an integral part of cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action.

19. The Constitution Bench of the Supreme Court in Amarsingh Harika has held that service of an order of dismissal becomes effective only on it being communicated to the concerned employee. What is challenged in the writ petition is the order of dismissal as confirmed in appeal. Is it not service of an order of dismissal, an integral part of the cause of action as held in Kusum Ingots & Alloys Ltd. (supra) relying on Oil and Natural Gas Commission case (supra)?. We are of the view that following Kusum Ingots & Alloys Ltd. (supra), an order of dismissal when it becomes effective definitely forms an integral part of the cause of action. Service of an order of dismissal is not a mere service of a notice, it definitely gives rise to a cause of action and such service of notice forms an integral part of the cause of action. If it is to be held that it does not form an integral part of cause of action, the factum of service of such order of dismissal does not require to be proved for giving effect to the order of dismissal.

20. In the result, we are of the view that service of an order of dismissal forms an integral part of the cause of action and since the order is served within the jurisdiction of this court this court has jurisdiction to entertain the original petition and hence this appeal is only to be allowed.

21. But in so far the learned Single Judge had not considered the matter on merits, the contentions urged by the petitioner on merit requires to be heard and disposed of by the learned Single Judge.

Accordingly, we set aside the judgment of the learned Single Judge. We find that the writ petition is maintainable as part of the cause of action had arisen within the jurisdiction of this Court. The files shall be placed before the learned Single Judge for disposing the writ petition on merits. The writ appeal is allowed as above.