M. Gangadhar S/O. Sri Mahesh Babu, Assistant Executive Engineer, Cmc Vs. the State of Karnataka, Department of Urban Development Represented by the Secretary and the Director of Municipal Administration - Court Judgment

Excerpt:

- order 26 & rule 9: [ashok b. hinchigeri, j] appointment of court commissioner -appointment of taluk surveyor as court commissioner for ascertaining as to in which survey number the suit schedule property is situated challenged on the ground that the appointment of the court commissioner for collecting the evidence on behalf of a party is absolutely impermissible held, the object of local inspection is not so much to obtain evidence, which from its very peculiar nature can only be had at the spot. if there is a serious dispute with regard to the area and boundaries of the land in question, the non-appointing of the court commissioner results in the serious miscarriage of justice. when the trial court, on perusing the oral and documentary evidence placed on its record, has formed the view that the matter calls for the appointment of the court commissioner, it cannot be found fault with......on the premise of pendency of disciplinary proceedings. hence, this writ petition grounded on violation of principles of natural justice.2. the fact that the petitioner had the special knowledge over the initiation of disciplinary proceedings as on 01.06.2006 while a junior engineer in the respondent city municipal council is not in dispute. the further fact that but for the disciplinary proceeding yet to be completed/concluded, there was no impediment for the respondent city municipal council to promote the petitioner to the post of assistant executive engineer on the basis of seniority-cum-merit is also not in dispute. therefore, the answer to the question as to whether the petitioner was meritorious enough to secure a promotion apparently lies in the decision of the disciplinary authority after the conclusion of the disciplinary proceeding. the city municipal council having not referred to the pendency of disciplinary proceeding on the date the petitioner was promoted to the post of assistant executive engineer, the subsequent order annexure-b, impugned herein, recalling the order of promotion, without notice to the petitioner, cannot be said to be in violation of the.....

Judgment:

ORDER

Ram Mohan Reddy, J.

1. The petitioner on being appointed as a Junior Engineer in the respondent City Municipal Council in the year 1987, was eligible for promotion to the post of Assistant Executive Engineer, but for the pendency of a departmental proceeding over alleged charges of misconduct initiated on 01.06.2006. The City Municipal Council having promoted the petitioner to the post of Assistant Executive Engineer by order dated 09.06.2009, Annexure-A recalled the same by Order dated 08.09.2009 Annexure-B on the premise of pendency of disciplinary proceedings. Hence, this Writ Petition grounded on violation of principles of natural justice.

2. The fact that the petitioner had the special knowledge over the initiation of disciplinary proceedings as on 01.06.2006 while a Junior Engineer in the respondent City Municipal Council is not in dispute. The further fact that but for the disciplinary proceeding yet to be completed/concluded, there was no impediment for the respondent City Municipal Council to promote the petitioner to the post of Assistant Executive Engineer on the basis of seniority-cum-merit is also not in dispute. Therefore, the answer to the question as to whether the petitioner was meritorious enough to secure a promotion apparently lies in the decision of the disciplinary authority after the conclusion of the disciplinary proceeding. The City Municipal Council having not referred to the pendency of disciplinary proceeding on the date the petitioner was promoted to the post of Assistant Executive Engineer, the subsequent order Annexure-B, impugned herein, recalling the order of promotion, without notice to the petitioner, cannot be said to be in violation of the principles of natural justice. I say so because, the question of failure to observe natural justice does not at all matter if the observance of natural justice would have made any difference in the admitted or indisputable facts speaking for themselves, since courts do not issue futile writs as observed by the Apex Court in the case of S.L. Kapoor v. Jayaraman : AIR 1981 SC 136.

3. Indisputably, if the petitioner is absolved of the material allegations in the disciplinary proceeding initiated by the respondent City Municipal Council, it is needless to state that the petitioner would be entitled to all the benefits, both monetary and service, including promotion.

In the result, the petition is without merit and is accordingly rejected. The respondent City Municipal Council is directed to conclude the enquiry proceedings as expeditiously as possible, in any event, within a period of six months from today.