Hiralal Hariprasad vs The State of Saurashtra

Chhatpar, J.—This is an appeal from an order returning an application to file a suit as a pauper to the applicants Appellant for presentation

to the proper Court, on the ground of want of Jurisdiction. The Appellant had held an application to bring a suit as a pauper against the State of

Saurashtra in which he prayed that his dismissal was wrongful inter alia on the ground that no opportunity was given to him of showing cause

against the action proposed to be taken, as required by Article 311 of the Constitution.

He also claimed a mandatory injunction directing ""the State of Saurashtra to reinstate him in sender and further claimed arrears of salary. The

application for leave to sue as a pauper was filed in the Court of the Civil Judge, Senior Division, Rajkot. The Appellant was an Excise Inspector

at the time the order of dismissal was passed against him. He was posted at Surendranagar but at the time of passing of the order he was on have

staying at Junagadh. The order of dismissal Is dated 7-6-1961, and is passed by the Chief Secretary at Rajkot and reads as under:

After carefully going through ad the papers and reports from the Supdt. of Excise Government is (satisfied to hold that various charges leveled

against Shri Munshi have been proved. He has in addition failed to maintain good relations with public or even with his subordinate staff. In words

of Supdt. of Excise, he has proved himself ; be obnoxious, reckless, impudent and irresponsive and thus unfit to be allowed to hold the charge at a

responsible post of the Excise Inspector without serious detriment to the working of the Department.

Government is accordingly pleased to hold that Shri H.H. Munshi, Excise Inspector, Hallowed is not fit to be retained in service any longer and to

direct his removal from service under clause VII of Rule 33 of 3.C.S. Conduct, under Discipline and Appeal Rules as adapted and applied to

Saurashtra with immediate effect.

This order was served on the applicant at Junagadh, though passed at Racket. The lower Court, without registering the application, raised a

preliminary issue whether it had jurisdiction and after hearing the applicant, ordered the application to be returned for presentation to the proper

Court, on the ground that he was holding the post of Excise Inspector at Surendranagar and the Court at Surendranagar alone could have

jurisdiction.

The learned Civil Judge held that the Civil Court at Rajkot could not have jurisdiction to entertain the application .merely because the State capital

happened to be at Rajkot or the order removing the applicant from service was made at Rajkot. He also considered the fact whether the act of

giving a notice u/s 80, CPC which was served on the Government at Racket could be considered a part of the cause of action which could give

jurisdiction to the Court at Racket, and held that it could not.

As regards the second point, there arc some Calcutta High Court rulings supporting view that giving of a notice u/s 80 CPC is a material fact

constituting a part of the cause of action, and the Court at the place when such notice is given will have jurisdiction by reason of the service of

notice at such place.

But a Bench of the Bombay High Court hold 3 the opposite view in Bata Shea Co. Ltd. v. Union of India, AIR 1054 Bern 129 ( -V 41) (A) that

statutory notice required by the provisions of the Railways Act as well as the CPC is no doubt an essential preliminary step for the valid institution

of a suit but that would net make such a notice part of the cause of action for the suit itself. The notice follows the cause of action and it merely

paves the way for the institution of the suit itself, That is why it is an essential preliminary step and no more.

It is not, therefore, correct to say that since the notice was given in Bombay, the Court of the Small Causes, Bombay, had jurisdiction to entertain

the suit, I need not discuss this point as to which of the two views is correct and I hold that the Rajkot Court will have jurisdiction, at least on the

ground that the alleged failure to give opportunity to show .cause as to the action proposed to be taken against the applicant occurred at Rajkot. In

this connection, I may refer to a recent decision of the Supreme Court In P. Joseph John Vs. The State of Travancore-Cochin, , wherein it was

held:

It is when a stage is reached when definite conclusions have been come to, as to the charges, and the actual punishment to fellow is provisionally

determined on, that the statute gives the Civil Servant an opportunity for which Sub-section (3) of Section 240, Government of India Act, 1935

(which corresponds to Article 31p makes provision, and at that stage a reasonable Opportunity has to be afford 3d to the Civil servant concerned.

There is no anomaly in the view that the statute contemplates a reasonable opportunity at more than one stage.

This decision of the Supreme Court follows a decision of the Privy Council in AIR 1948 121 (Privy Council) . Now this opportunity was to be

given at Rajkot where the order of removal was passed after the conclusion was arrived at that the applicant had committed a breach of his duties

and became liable to punishment.

In the present case, the applicant alleges that no such opportunity was given. The impugned order was passed at Rajkot and it would follow that if

such an opportunity had been given to him, he would be called upon to show cause at Rajkot. This granting of reasonable opportunity is a

constitutional provision under Article 311 and being one of the essential facts to be proved to sustain an order of removal would be part of the

cause of action.

The words ''cause of action'' appearing; in Section20 CPC as interpreted by Mull a in his CPC at p. 120, mean every fact which, l'' traversed, it

would be necessary for the plain till to prove in order to support his right to the judgment of the Court. It does not comprise even piece of evidence

which is necessary to prove each fact, but every fact which is necessary to be proved to entitle the Plaintiff to a decree. Everything which if not

proved would give the Defendant a right to an immediate judgment must be part of the cause of action.

It is, in other words, a bond''s of essential facts which it is necessary for the Plaintiff to prove before he can succeed in the suit. 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, it

refers entirely to the grounds set forth in the plaint as the cause of action, or, In other words, to the media upon which the Plaintiff asks the Court to

arrive at a conclusion in Ms favour.

In my opinion, the alleged failure of the Government to give him an opportunity under Article 311, to show cause what punishment should be

meted out to him, is an essential fact to be proved. The right given by the Constitution and its denial would be an essential fact, which along with

Ors. , would comprise the cause of action. The failure of giving an opportunity had occurred at Rajkot, and therefore, the Rajkot Civil Judge will

have Jurisdiction. I therefore set aside the order of the Civil Judge and direct him to proceed with the application for leave to sue in forma pauperis

in accordance with law. Costs to abide by the result of the matter.