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2016 DIGILAW 371 (KAR)

Fedric D'souza v. State of Karnataka

2016-04-23

B.V.NAGARATHNA, JAYANT M.PATEL

body2016
ORDER : Jayant M. Patel, J. 1. Issue Rule. 2. Sri G. Shankar Goud, AGA for respondent Nos. 1 and 2, Sri G.S. Kannur, learned Counsel appearing for respondent Nos. 3 to 5 and Mr. K.N. Puttegowda, learned Counsel for caveat/respondent No. 6 and Mr. M.S. Bhagwat, learned Counsel for respondent No. 7, waive service of notice of admission. With the consent of learned Advocates appearing on both sides, the petition is finally heard. 3. The present petition is directed against order dated 17.03.2016 passed by the Karnataka Appellate Tribunal, Bangalore, (hereinafter referred to as 'the Tribunal' for short), whereby the Tribunal after rejection of the application as not pressed, has issued a further direction, observing that respondent No. 6 therein was entitled to take charge as Assistant Executive Engineer from Mr. Fedrick D'Souza-the petitioner herein who was stated to have taken charge on 08.02.2016 from the applicant before the Tribunal. 4. As such, we need not examine the further facts of the present case except on the limited two points:- "one, is that if the applicant before the Tribunal had declared that she was not desirous of pursuing the proceedings, the matter could have ended there and the Tribunal could not have passed a further order and the second aspect is that, even if the matter was to be considered for further order, it could not have been by passing any order against any person who was not impleaded as a party in the proceedings before the Tribunal." 5. We would have further examined the aforesaid two aspects. But the learned Counsel appearing on both the sides, fairly concede that even as on today, it is an admitted position that respondent No. 7 who was applicant before the Tribunal is not desirous in pursuing the proceedings. It is also an admitted position that the petitioner herein was not impleaded as party in the proceedings before the Tribunal. On the contrary, as per the learned Counsel appearing for the respective parties, the matter could have ended by the Tribunal by disposal of the application as not pressed. Be that as it may, the fact remains that the Tribunal has passed the further impugned direction. 6. We may record that the Tribunal in para-3 of the impugned order has recorded thus:- "3. Be that as it may, the fact remains that the Tribunal has passed the further impugned direction. 6. We may record that the Tribunal in para-3 of the impugned order has recorded thus:- "3. Learned Counsel for the Applicant submits that in view of Official Memorandum dated 8.2.2015 (Annexure R-1 produced along with a Memo by learned Counsel for Respondents 3 to 5) issued by Respondent No. 3 (Commissioner, Bangalore Development Authority) the Applicant has handed over charge to one Mr. Fedrick D'souza on 8.2.2015 and therefore she has no interest in the case and hence the Application may be rejected as not pressed." 7. Further the Tribunal in para-8(1) of the impugned order has issued the following direction:- "8 (1) Application is rejected as not pressed." 8. We do not find that the direction at the aforesaid stage would call for interference since it results into rejection of the application as not pressed in view of the declaration made on behalf of the applicant. 9. Had the Tribunal ended there, the matter would have been different but the Tribunal further passed the order at paragraphs 8(2), (3) and (4) which read as under:- "8(2) Consequently, Respondent No. 6 is entitled to take charge as Assistant Executive Engineer, No. 4 West Sub-Division, Bangalore Development Authority from Mr. Fedrick D'souza who has taken charge on 8.2.2016 from the Applicant. (3) Respondent No. 3 is directed to pass necessary orders in this regard. (4) Respondent No. 6 shall take charge as per Annexure A-8 within one month from the date of receipt of a copy of this order." 10. It is an admitted position that the petitioner herein Mr. Fedrick D'Souza was not a party to the proceedings before the Tribunal. Even if we consider the matter for the sake of examination that there was some interim order passed by the Tribunal and resultantly the Tribunal could pass further consequential order, such an exercise could have been undertaken only if all the parties to the proceedings who are to face the order were before the Tribunal in the proceedings. When it is an admitted position that the petitioner herein was not a party to the proceedings, in our view, no such order nor any direction could have been issued by the Tribunal unless and until the petitioner was joined as a party to the proceedings. 11. When it is an admitted position that the petitioner herein was not a party to the proceedings, in our view, no such order nor any direction could have been issued by the Tribunal unless and until the petitioner was joined as a party to the proceedings. 11. Further as recorded hereinabove, since the original applicant before the Tribunal was not desirous of pursuing the proceedings, it would have been just and proper to have ended the matter at that stage. In any case, the direction issued at para-8(2), (3) and (4) cannot be maintained or sustained considering the peculiar facts and circumstances of the case. 12. However, Mr. K.N. Putte Gowda, learned Counsel appearing for respondent No. 6 submitted that with a view to pursue the rights in accordance with law, separate proceedings are filed by respondent No. 6 before the Tribunal, wherein the petitioner is joined as a party. Whereas the learned Counsel for the applicant submits that he has no information about the same. 13. In our view, even if such separate proceedings are resorted to by respondent No. 6, the matter may be examined by the Tribunal in accordance with law against the party to the proceedings, but as the same is not the subject matter of the petition, we do not find it appropriate to make any observation. 14. In view of the aforesaid observation and discussion, the impugned order in so far as it relates to issuing directions at paragraphs 8(2) (3) and (4) passed by the Karnataka Administrative Tribunal is set aside. 15. The petition is allowed to the aforesaid extent. Considering the facts and circumstances of the case, there is no order as to costs.