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1993 DIGILAW 329 (RAJ)

Kendriya Vidhyalaya Sangthan v. M. L. Mudgal

1993-05-25

K.C.AGRAWAL, V.K.SINGHAL

body1993
Honble AGRAWAL, CJ. - This is an appeal filed against the judgment of the learned single Judge allowing the writ petition of the respondent-Madan Lal Mudgal, who had been selected for being appointed as Primary Teacher in the Kendriya Vidhyalaya Sangthan (Ahmedabad Region). According to the respondent, he joined the service at Udaipur and, thereafter, in August, 1980 he was transferred to Jaipur in the same Institution. (2) A complaint was filed on 27.12.1981 against the respondent for assault and outraging the modesty of a minor girl student on 26.12.1981. The said complaint was forwarded to the Assistant Commissioner, who sent the same to the Commissioner reporting about immoral behaviour of the respondent. Thereafter, the Commissioner directed that Asstt. Commissioner to make a detailed inquiry. In pursuance of the order of the Commissioner, the. Asstt. Commissioner made a detailed enquiry and found the respondent guilty of exhibition of sexual behaviour towards girl student Kusum Wadhwa. This followed dismissal of the respondent, which had been challenged by means of the writ petition giving rise to this appeal (3) The respondent denied the charge in the writ petition. The learned Single Judge allowed the writ petition on the ground of violation of principles of natural justice. Against the said judgment and order, the present appeal has been filed by the Kendriya Vidhyalaya Sangthan. (4) The appeal was listed for hearing before this Bench today. To the hearing of which, the learned counsel for the respondent raised an objection on two grounds; the first was that the appeal was admitted behind his back and without any notice although he had filed a caveat in the appeal and the second was that the amendment of the memorandum of appeal was allowed without an opportunity of hearing to him. The learned counsel for the respondent relied on Section 148-A of the Code of Civil Procedure and Rule 159 of the Rajasthan High Court Rules in support of his objection. He also placed reliance on a decision of the Division Bench of this Court reported in H.G. Shankar Narayan vs. The State of Rajasthan (1). (5) We do not find any substance in the submission made by the learned counsel for the respondent. Before we proceed to deal with them, it may be mentioned that the respondents counsel had put in appearance in the appeal much before its admission on 24.1.1992. (5) We do not find any substance in the submission made by the learned counsel for the respondent. Before we proceed to deal with them, it may be mentioned that the respondents counsel had put in appearance in the appeal much before its admission on 24.1.1992. He gave an undertaking on 24.7.1991 that judgment of the learned Single Judge would not be implemented till further orders. (6) On 6.12.1991, the Court allowed two weeks time to the appellants counsel for filing amendment application. The respondents counsel was given 7 days time for reply which he did not do. The amendment application was on the point that Kendriya Vidhyalaya Sangthan was not a State within the meaning of Art. 12 of the Constitution of India. The amendment application was filed by the appellant within time. (7) The appeal was admitted on 24.1.1992, to which objection had been raised by Mr. Joshi, learned counsel for the respondent. He contended that a caveator is entitled to be heard on merits before its admission. That submission does not appear to us to be correct. Section 148-A of the Code of Civil Procedure was added by the Code of Civil Procedure (Amendment) Act, 1976. The purpose of that amendment is as follows: — "Clause-53 - Under the Code, sometimes a party obtains an ex parte order on an application without informing the other party of his intention to make such an application. Where a party, with a view to preventing such ex parte orders being passed, intimates to the Court of his intention to have notice at an intended application by the adverse party, he may be authorised to do so. New Section 148-A is being inserted to provide for a caveat." (8) I appears that the legislature did not provide for hearing of a caveator before admission. The admission made in the absence of the caveators counsel does not nullify or invalidate. The admission, as a matter of fact, does not affect the right of the person against whom the appeal has been admitted. It is only a procedural matter in between the Court and the appellant. (9) The Court has discretion to hear the caveator before passing any order for admission. The respondent has no right to be heard. See AIR 1984 Bom. 114 (2). It is only a procedural matter in between the Court and the appellant. (9) The Court has discretion to hear the caveator before passing any order for admission. The respondent has no right to be heard. See AIR 1984 Bom. 114 (2). (10) In H.G. Shankar Narayan vs. the State of Rajasthan (supra), the facts were different than what they are in the present case. In that case, the notice of caveat had not given to the petitioner, hence, the Bench found that in the absence of a notice, the admission of the writ petition could not be invalidated. In the instant case, we have noted above that the respondent had been represented by a counsel on the date much earlier to that of admission. (11) We are of the opinion that admission was not rendered illegal on account of the respondents counsel not being heard. The grant of a stay or injunction stands on a different footing and if and when such a stay order is granted in the absence of a caveator, the Court can recall the order and can hear both the parties, but that was not so in this case. Whatever the respondents counsel wanted to urge against admission would be entitled to put forward before the Court at the time of final hearing. The respondent has not been prejudiced by the admission of the appeal. (12) The second ground taken by the learned counsel for the respondent was that the amendment was allowed in his absence. We could not find any order from the record demonstrating that the ground added subsequently was allowed. The ground taken was only that Kendriya Vidhyalaya Sangthan was not a State. It is a pure question of law. The respondents case does not suffer because of allowing of the ground if it had been ordered. (13) The appeal has proceeded on merits and was listed in the Court for the said purpose on many days on which the respondents counsel had appeared, therefore, this objection taken by him is meaningless and futile. The respondent had already given an undertaking for not implementing the judgment of the learned Single Judge on 24.07.1991. Consequently, the stay order dated 24.1.1992 cannot said to have caused prejudice. The respondent had already given an undertaking for not implementing the judgment of the learned Single Judge on 24.07.1991. Consequently, the stay order dated 24.1.1992 cannot said to have caused prejudice. (14) In the result, objection of the respondents counsel is over-ruled and the appeal is directed to be listed in the third week of July, 1993 for final hearing as prayed.