K.S. Manjunatha Vs. Mazagon Dock Limited, Mumbai and anr. - Court Judgment

Excerpt:
- order 1, rule 10 & order 20, rule 18: [ajit j. gunjal, j] suit for partition and separate possession - defendant no. 1 had executed a sale deed in favour of the applicant /petitioner respect of item no.2 of the plaint schedule properties for consideration indicating as self-acquired property-petitioners/purchasers making an application for impleading in final decree proceedings - pending final decree proceedings defendant no.1 died and his legal representatives were brought on record application of petitioners who are purchasers pendente lite was rejected question for consideration whether in final decree proceedings a purchaser of the property pendente lite in a suit for partition is required to be impleaded in a final decree proceedings held, it should not be lost sight of the fact that the suit was filed for partition. the court can certainly grant more than one preliminary decree because such a suit must be deemed to be pending till a final decree is actually granted. therefore, where after a preliminary decree is passed, if an application is made for impleading as a party but their being a dispute as to the exact quantum, the application, in such circumstances, is required to be entertained and dismissal of the said application is not at all warranted. indeed, it is to be noticed that there is no prohibition in the code of civil procedure against passing a second preliminary decree. in such circumstances, the application filed by the petitioners could not have been rejected by the trial judge. as has been stated consistently the scope of an application under order 1, rule 10 is not to see whether the applicant is entitled for the ultimate relief but only to see if he is a necessary and proper party. order of trial court was set aside and application for impleading was allowed. order 20, rule 18 & order 1, rule 10: [ajit j. gunjal, j] suit for partition and separate possession - defendant no. 1 had executed a sale deed in favour of the applicant /petitioner respect of item no.2 of the plaint schedule properties for consideration indicating as self-acquired property-petitioners/purchasers making an application for impleading in final decree proceedings - pending final decree proceedings defendant no.1 died and his legal representatives were brought on record application of petitioners who are purchasers pendente lite was rejected question for consideration whether in final decree proceedings a purchaser of the property pendente lite in a suit for partition is required to be impleaded in a final decree proceedings held, it shoud not be lost sight of the fact that the suit was filed for partition. the court can certainly grant more than one preliminary decree because such a suit must be deemed to be pending till a final decree is actually granted. therefore, where after a preliminary decree is passed, if an application is made for impleading as a party but their being a dispute as to the exact quantum, the application, in such circumstances, is required to be entertained and dismissal of the said application is not at all warranted. indeed, it is to be noticed that there is no prohibition in the code of civil procedure against passing a second preliminary decree. in such circumstances, the application filed by the petitioners could not have been rejected by the trial judge. as has been stated consistently the scope of an application under order 1, rule 10 is not to see whether the applicant is entitled for the ultimate relief but only to see if he is a necessary and proper party. order of trial court was set aside and application for impleading was allowed. - 14. on going through the pleadings at para 18 of the writ petition, it appears to me that was only a narration with regard to the appeal, the petitioner had preferred, as against the order of censure that came to be passed as against him and that being so, i do not think that the above argument advanced by the learned counsel for the respondents can be entertained in any way, for, the moot point before me is that the learned counsel for the respondents, sri bhat, strangely did not challenge the main contention of sri leelakrishnan that when the criminal case had ended with an order of acquittal, copy as at annexure-a to writ petition, the respondent 1 would have as well opened the sealed cover of dpc held in the year 1997. as a matter of fact, sri bhat did not challenge at all the said submission made by sri leelakrishnan.orderthe court 1. in filing the instant writ petition, the petitioner, who is presently working as plant manager in the establishment of respondent-company at mangalore, had prayed for issue of writ of certiorari to quash the order dated 22-1-1999 in no. pers/(0)1775 passed by the respondent 2, copy as at annexure-m to writ petition, in passing whereof, the respondent 2 had communicated the petitioner that the findings of 'sealed cover' shall not be acted upon in the case wherein any penalty is imposed on the officer and further for direction to the respondents to issue writ of mandamus or order or direction to open the sealed cover maintained in the case and to give effect to the recommendations of the departmental promotion committee and further to extend the benefit thereunder.2. the respondents had filed the detailed objection statement. in doing that, they had contended that it was not opening the sealed cover on the ground that the petitioner was awarded with punishment of censure in a departmental enquiry, copy as at annexure-j to the writ petition.3. the learned counsel for the petitioner, sri leelakrishnan, while taking me through the facts of the case and further the grounds urged in the writ petition at the outset submitted that, admittedly when the disciplinary enquiry was in progress, there was a pending proceedings in a criminal case before the cbi court at mysore for the alleged offence under section 5(l)(e) and 5(2) of the prevention of corruption act, 1947and that subsequently, the said criminal case ended with acquittal of the petitioner as long back as on [7-3-1988], copy of the judgment produced as annexure-a to the writ petition. while drawing my attention to rule 12 of the promotion rules for officers of the respondent 1-com-pany, he had also argued that when the criminal case in question had come to a close, the respondents would have naturally opened the above sealed cover and further given effect to the recommendation of the departmental promotion committee (hereinafter referred to as tjpc') to promote the petitioner from the grade of plant manager to the next higher grade.4. in this context he had also drawn my attention to rule 12 of the promotion rules for officers extracted at para 7 of the writ petition. to quote the same, the same reads as hereunder:'12. promotion of officers whose conduct is under investigation.--officers whose cases fall under one or the other of the following categories will also be considered for promotion by dpcs but the findings of the dpc would be recorded separately and kept in a sealed envelope super scribed 'findings regarding merit and suitability for promotion to the rank of... in respect of shri......'and 'not to be opened till after the termination or suspension/conclusion or disciplinary proceedings/conclusion of criminal proceedings against shri.....':(a) officers who are under suspension;(b) officers against whom disciplinary proceedings are pending;(c) cases of officers against whom a decision has been taken by the competent authority to initiate disciplinary proceedings;(d) officers against whom criminal prosecution has been launched in a court of law or sanction for prosecution has been issued.note.--the proceedings of the departmental promotion committee need only contain the note 'the findings are contained in the attached sealed envelope'.'if any penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the court proceedings against him, the findings in the sealed cover/covers will not be acted upon'.5. on a simple reading of the above provision of the rule, it appears to me that there was no justification for the respondents not to open the sealed cover in view of the circumstances that the criminal case in question had come to a close on the above date i.e., 7-3-1998, it was also argued by sri leelakrishnan that in view of the above circumstances his party had also given a representation on 23-4-1998, copy as at annexure-b to writ petition and despite that the respondents did not oblige his party. in furtherance of his argument, it was also argued by him thatthree months after the disposal of the criminal case, the respondent 1 had initiated a fresh departmental enquiry as against his party, copy as at annexure-c to writ petition, and that penalty of censure came to be awarded to his party on 17-12-1998, copy as at annexure-j to writ petition and on that count, the respondent 1 had refused to open the 'sealed cover' in question, copy as at annexure-m to writ petition, the one under challenge in the instant writ petition. according to him, it was not at all open for the respondent 1 to withhold the opening of the above sealed cover of dpc on the ground that subsequently the petitioner came to be awarded with punishment in a fresh departmental enquiry inasmuch as, according to him, the respondent 1 by following rule 12 of the promotion rules for officers, would have promptly opened the sealed cover to give effect to the recommendation of dpc in the matter of promotion of his party in view of the circumstances that the criminal case lodged against the petitioner before the cbi court ended with acquittal to the knowledge of the respondents.6. therefore, he prayed that the impugned order, copy as at annexure-m to writ petition be quashed and the respondents be directed to open the 'sealed cover' of dpc and to give effect the same in following rule 12 of the promotion rules for officers.7. in support of the argument of sri leelakrishnan, he had also cited before me the following decisions:1. state of madhya pradesh v j.s. bansal and anr.;2. bank of india and anr v degala suryanarayana;3. delhi jal board v mahinder singh.8. in citing the above decisions, sri leelakrishnan had also argued that the decisions of the apex court in all the above cases are applicable to the case in hand.9. the learned counsel for the respondents, sri pundikai eshwara bhat appearing along with sri b.l. acharya, submitted that the instant writ petition is liable to be rejected. while drawing my attention to the pleadings in para 18 of the writ petition, sri bhat submitted that the petitioner himself had averred that the respondent 1 would have awaited the appeal preferred by him as against annexure-j to writ petition. the said submission was made by sri bhat for the reason that the writ petition filed by the petitioner according to his own showing is premature. he had also added that the respondent 1 had passed a considered order on the appeal preferred by the petitioner as per annexure-r4 and as per the said annexure-r4, the appeal preferred by the petitioner as against annexure-j came to be rejected. he had also submitted that that was not at all challenged by the petitioner and hence,according to him, there was no every justification on the part of the respondent 1 in not opening the sealed cover of dpc in question.10. in the light of the above arguments advanced, the sole question that arises for my consideration in the instant writ petition is whether there was justification or not on the part of the respondent 1 in not opening the sealed cover of dpc making certain recommendations in the matter of promotion of the petitioner in the light of the rule 12 of the promotion rules for officers of the respondent 1-company.11. it is an admitted fact that the promotion of the petitioner from the present grade to the next higher grade came to be considered by the dpc as long back as in the year 1997 when he was facing the criminal charge before the cbi court under section 5(l)(e) and 5(2) of the prevention of corruption act and it is for that reason the dpc put its recommendation in the sealed cover to be opened immediately after the closure of the above case. it is also an admitted fact that the said case came to be an end with an order of acquittal in favour of the petitioner by the cbi court at mysore on 7-3-1998. in this context, i feel it is appropriate to refer to rule 12 of the promotion rules for officers of the respondent 1-company quoted as above.12. from the above provision of rule, it is clear there from that immediately after termination of the criminal proceedings, the respondent 1 would have naturally opened the sealed cover of dpc to give effect to its recommendation in the matter of promotion of the petitioner and admittedly, the respondent 1 did not take recourse to the same despite there being a request by the petitioner, copy as at annexure-b to writ petition.13. the learned counsel for the respondents, sri bhat, tried to take shelter in the pleadings in para 18 of the writ petition wherein the petitioner did plead that the respondent 2 ought to have awaited the decision of the appellate authority in the appeal preferred by the petitioner as against annexure-j to writ petition. it is also true that on the face of that pleading, he had challenged the impugned order at annexure-m to writ petition.14. on going through the pleadings at para 18 of the writ petition, it appears to me that was only a narration with regard to the appeal, the petitioner had preferred, as against the order of censure that came to be passed as against him and that being so, i do not think that the above argument advanced by the learned counsel for the respondents can be entertained in any way, for, the moot point before me is that the learned counsel for the respondents, sri bhat, strangely did not challenge the main contention of sri leelakrishnan that when the criminal case had ended with an order of acquittal, copy as at annexure-a to writ petition, the respondent 1 would have as well opened the sealed cover of dpc held in the year 1997. as a matter of fact, sri bhat did not challenge at all the said submission made by sri leelakrishnan. it is not out of context to observe in this context that the learned counsel for the respondents, sri bhat tried to stand to side-track the main issue by tryingto read in-between the lines by finding commission of some fault, if that be liberally termed so, in the pleading in para 18 of the writ petition.15. therefore, i feel that the instant writ petition merits consideration on the ground that the respondent 1 without following the rule 12 of the promotion rules for officers of the respondent 1-company withheld the opening of the sealed cover of dpc despite the acquittal order that came to be passed by the cbi court and instead after 3 months from that, the respondent 1 had instituted a fresh departmental enquiry as against the petitioner and furthermore, on that ground, the respondent 1 had refused to open the sealed cover of dpc. according to me, the respondent 1 had totally entered into an error in passing the impugned order, copy as at annexure-m to writ petition, for, as per rule 12 of the promotion rules for officers of the respondent 1, the respondent 1 would have opened the sealed cover immediately after the order of acquittal that came to be passed by the cbi court, copy as at annexure-a to writ petition.16.1 have gone through the decisions cited by the learned counsel for the petitioner, sri leelakrishnan. among three decisions, the second decision cited by him in bank of india's case, supra, has got total application to the instant case in hand inasmuch as i find the set of facts in the said reported case and in the instant case in hand are similarly placed.17. in the instant case in hand, as i see, for no fault of the petitioner, he has been made to come before this court for the reason that the respondent 1 had declined to act upon in the matter of opening the sealed cover despite there being a representation by him, copy as at annexure-b to writ petition. therefore, it appears to me that the petitioner deserves cost of this writ petition, that i liberally assess, i.e., the cost at rs. 5,000.00.in the result, i pass the following:

Judgment:
ORDER

The Court

1. In filing the instant writ petition, the petitioner, who is presently working as Plant Manager in the establishment of respondent-Company at Mangalore, had prayed for issue of writ of certiorari to quash the order dated 22-1-1999 in No. PERS/(0)1775 passed by the respondent 2, copy as at Annexure-M to writ petition, in passing whereof, the respondent 2 had communicated the petitioner that the findings of 'Sealed Cover' shall not be acted upon in the case wherein any penalty is imposed on the officer and further for direction to the respondents to issue writ of mandamus or order or direction to open the sealed cover maintained in the case and to give effect to the recommendations of the Departmental Promotion Committee and further to extend the benefit thereunder.

2. The respondents had filed the detailed objection statement. In doing that, they had contended that it was not opening the sealed cover on the ground that the petitioner was awarded with punishment of censure in a departmental enquiry, copy as at Annexure-J to the writ petition.

3. The learned Counsel for the petitioner, Sri Leelakrishnan, while taking me through the facts of the case and further the grounds urged in the writ petition at the outset submitted that, admittedly when the disciplinary enquiry was in progress, there was a pending proceedings in a criminal case before the CBI Court at Mysore for the alleged offence under Section 5(l)(e) and 5(2) of the Prevention of Corruption Act, 1947and that subsequently, the said criminal case ended with acquittal of the petitioner as long back as on [7-3-1988], copy of the judgment produced as Annexure-A to the writ petition. While drawing my attention to Rule 12 of the Promotion Rules for Officers of the respondent 1-Com-pany, he had also argued that when the criminal case in question had come to a close, the respondents would have naturally opened the above sealed cover and further given effect to the recommendation of the Departmental Promotion Committee (hereinafter referred to as TJPC') to promote the petitioner from the grade of Plant Manager to the next higher grade.

4. In this context he had also drawn my attention to Rule 12 of the Promotion Rules for Officers extracted at para 7 of the writ petition. To quote the same, the same reads as hereunder:

'12. Promotion of Officers whose conduct is under investigation.--Officers whose cases fall under one or the other of the following categories will also be considered for promotion by DPCs but the findings of the DPC would be recorded separately and kept in a sealed envelope super scribed 'findings regarding merit and suitability for promotion to the rank of... in respect of Shri......'

and 'not to be opened till after the termination or suspension/conclusion or disciplinary proceedings/conclusion of criminal proceedings against Shri.....':

(a) Officers who are under suspension;

(b) Officers against whom disciplinary proceedings are pending;

(c) Cases of officers against whom a decision has been taken by the Competent Authority to initiate disciplinary proceedings;

(d) Officers against whom criminal prosecution has been launched in a Court of Law or sanction for prosecution has been issued.

Note.--The proceedings of the Departmental Promotion Committee need only contain the note 'The findings are contained in the attached sealed envelope'.

'If any penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the Court proceedings against him, the findings in the sealed cover/covers will not be acted upon'.

5. On a simple reading of the above provision of the rule, it appears to me that there was no justification for the respondents not to open the sealed cover in view of the circumstances that the criminal case in question had come to a close on the above date i.e., 7-3-1998, It was also argued by Sri Leelakrishnan that in view of the above circumstances his party had also given a representation on 23-4-1998, copy as at Annexure-B to writ petition and despite that the respondents did not oblige his party. In furtherance of his argument, it was also argued by him thatthree months after the disposal of the criminal case, the respondent 1 had initiated a fresh departmental enquiry as against his party, copy as at Annexure-C to writ petition, and that penalty of censure came to be awarded to his party on 17-12-1998, copy as at Annexure-J to writ petition and on that count, the respondent 1 had refused to open the 'sealed cover' in question, copy as at Annexure-M to writ petition, the one under challenge in the instant writ petition. According to him, it was not at all open for the respondent 1 to withhold the opening of the above sealed cover of DPC on the ground that subsequently the petitioner came to be awarded with punishment in a fresh departmental enquiry inasmuch as, according to him, the respondent 1 by following Rule 12 of the Promotion Rules for Officers, would have promptly opened the sealed cover to give effect to the recommendation of DPC in the matter of promotion of his party in view of the circumstances that the criminal case lodged against the petitioner before the CBI Court ended with acquittal to the knowledge of the respondents.

6. Therefore, he prayed that the impugned order, copy as at Annexure-M to writ petition be quashed and the respondents be directed to open the 'sealed cover' of DPC and to give effect the same in following Rule 12 of the Promotion Rules for Officers.

7. In support of the argument of Sri Leelakrishnan, he had also cited before me the following decisions:

1. State of Madhya Pradesh v J.S. Bansal and Anr.;

2. Bank of India and Anr v Degala Suryanarayana;

3. Delhi Jal Board v Mahinder Singh.

8. In citing the above decisions, Sri Leelakrishnan had also argued that the decisions of the Apex Court in all the above cases are applicable to the case in hand.

9. The learned Counsel for the respondents, Sri Pundikai Eshwara Bhat appearing along with Sri B.L. Acharya, submitted that the instant writ petition is liable to be rejected. While drawing my attention to the pleadings in para 18 of the writ petition, Sri Bhat submitted that the petitioner himself had averred that the respondent 1 would have awaited the appeal preferred by him as against Annexure-J to writ petition. The said submission was made by Sri Bhat for the reason that the writ petition filed by the petitioner according to his own showing is premature. He had also added that the respondent 1 had passed a considered order on the appeal preferred by the petitioner as per Annexure-R4 and as per the said Annexure-R4, the appeal preferred by the petitioner as against Annexure-J came to be rejected. He had also submitted that that was not at all challenged by the petitioner and hence,according to him, there was no every justification on the part of the respondent 1 in not opening the sealed cover of DPC in question.

10. In the light of the above arguments advanced, the sole question that arises for my consideration in the instant writ petition is whether there was justification or not on the part of the respondent 1 in not opening the sealed cover of DPC making certain recommendations in the matter of promotion of the petitioner in the light of the Rule 12 of the Promotion Rules for Officers of the respondent 1-Company.

11. It is an admitted fact that the promotion of the petitioner from the present grade to the next higher grade came to be considered by the DPC as long back as in the year 1997 when he was facing the criminal charge before the CBI Court under Section 5(l)(e) and 5(2) of the Prevention of Corruption Act and it is for that reason the DPC put its recommendation in the sealed cover to be opened immediately after the closure of the above case. It is also an admitted fact that the said case came to be an end with an order of acquittal in favour of the petitioner by the CBI Court at Mysore on 7-3-1998. In this context, I feel it is appropriate to refer to Rule 12 of the Promotion Rules for Officers of the respondent 1-Company quoted as above.

12. From the above provision of rule, it is clear there from that immediately after termination of the criminal proceedings, the respondent 1 would have naturally opened the sealed cover of DPC to give effect to its recommendation in the matter of promotion of the petitioner and admittedly, the respondent 1 did not take recourse to the same despite there being a request by the petitioner, copy as at Annexure-B to writ petition.

13. The learned Counsel for the respondents, Sri Bhat, tried to take shelter in the pleadings in para 18 of the writ petition wherein the petitioner did plead that the respondent 2 ought to have awaited the decision of the Appellate Authority in the appeal preferred by the petitioner as against Annexure-J to writ petition. It is also true that on the face of that pleading, he had challenged the impugned order at Annexure-M to writ petition.

14. On going through the pleadings at para 18 of the writ petition, it appears to me that was only a narration with regard to the appeal, the petitioner had preferred, as against the order of censure that came to be passed as against him and that being so, I do not think that the above argument advanced by the learned Counsel for the respondents can be entertained in any way, for, the moot point before me is that the learned Counsel for the respondents, Sri Bhat, strangely did not challenge the main contention of Sri Leelakrishnan that when the criminal case had ended with an order of acquittal, copy as at Annexure-A to writ petition, the respondent 1 would have as well opened the sealed cover of DPC held in the year 1997. As a matter of fact, Sri Bhat did not challenge at all the said submission made by Sri Leelakrishnan. It is not out of context to observe in this context that the learned Counsel for the respondents, Sri Bhat tried to stand to side-track the main issue by tryingto read in-between the lines by finding commission of some fault, if that be liberally termed so, in the pleading in para 18 of the writ petition.

15. Therefore, I feel that the instant writ petition merits consideration on the ground that the respondent 1 without following the Rule 12 of the Promotion Rules for Officers of the respondent 1-Company withheld the opening of the sealed cover of DPC despite the acquittal order that came to be passed by the CBI Court and instead after 3 months from that, the respondent 1 had instituted a fresh departmental enquiry as against the petitioner and furthermore, on that ground, the respondent 1 had refused to open the sealed cover of DPC. According to me, the respondent 1 had totally entered into an error in passing the impugned order, copy as at Annexure-M to writ petition, for, as per Rule 12 of the Promotion Rules for officers of the respondent 1, the respondent 1 would have opened the sealed cover immediately after the order of acquittal that came to be passed by the CBI Court, copy as at Annexure-A to writ petition.

16.1 have gone through the decisions cited by the learned Counsel for the petitioner, Sri Leelakrishnan. Among three decisions, the second decision cited by him in Bank of India's case, supra, has got total application to the instant case in hand inasmuch as I find the set of facts in the said reported case and in the instant case in hand are similarly placed.

17. In the instant case in hand, as I see, for no fault of the petitioner, he has been made to come before this Court for the reason that the respondent 1 had declined to act upon in the matter of opening the sealed cover despite there being a representation by him, copy as at Annexure-B to writ petition. Therefore, it appears to me that the petitioner deserves cost of this writ petition, that I liberally assess, i.e., the cost at Rs. 5,000.00.

In the result, I pass the following: