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2018 DIGILAW 617 (JK)

Sanjeev Kumar v. State of J&K

2018-08-08

SANJAY KUMAR GUPTA, TASHI RABSTAN

body2018
JUDGMENT : Tashi Rabstan, J. 1. Review Petitioner (respondent No.3 in LPA no.32/2018) is seeking review/recalling/setting aside of judgment and order dated 31.05.2018, passed by this Court in LPA No. 32/2018 titled “Vinod Kumar Gupta v. State of J&K and others”, by virtue whereof said appeal, filed by appellant-respondent No.3 herein, has been disposed of with a direction to official respondents to proceed in the matter strictly in terms of Government Order No.132-PDD of 2018 dated 15.05.2018 and to that extent order of learned Writ Court was modified. 2. Review petitioner claims that by order No.37-DCP of 2018 dated 27.04.2018, he was transferred and adjusted in place of appellant (respondent No.3 herein). In compliance to order dated 27.04.2018, he joined the office of Executive Engineering Electric M&RE Division, Kathua. By order dated 01.05.2018, he was adjusted in the office of Assistant Executive Engineer, Store, Sub Division, Kathua, and he, accordingly, submitted his joining report on 01.05.2018. 3. Mr. Salathia, learned Senior counsel appearing on behalf of the Review Petitioner, has stated that appellant-respondent No.3 herein, in order to harass Review Petitioner, filed a writ petition, bearing SWP No.797/2018, which was dismissed vide order dated 07.05.2018. Feeling aggrieved thereof, appellant-respondent No.3 herein filed LPA, which was disposed of with a direction to official respondents to proceed in the matter strictly in terms of Government Order No.132-PDD of 2018 dated 15.05.2018 and to that extent order of learned Writ Court was modified. Learned counsel has contended that despite Review Petitioner having filed Caveat, he was not afforded an opportunity of being heard and this Court has passed the order under review, without hearing the other side. Thus, it is contended that had he been granted an opportunity of being heard, he would have placed necessary information and documents on record to show that the case of the appellant-respondent No.3 herein was not maintainable. 4. On the other hand, Mr A K Sawhney learned counsel appearing for Mr Vinod Kumar Gupta-respondent No.3 herein (Appellant in LPA), has submitted that the Review Petitioner in the guise of the present Review Petition is trying to re-argue the matter, which is impermissible under law. In a Review Petition, the sine qua non is “error apparent” on the face of record and in the present case there is no error except for an attempt to re-argue the matter. In a Review Petition, the sine qua non is “error apparent” on the face of record and in the present case there is no error except for an attempt to re-argue the matter. His further submission is that Review petitioner has made two fold submissions: firstly, by Government Order No. 132-PDD of 2018 dated 15.05.2018, transfers in Power Development Department were banned, which fact was never brought on record of writ petition; secondly, that the Caveat so filed with the LPA was not considered and no notice issued to Caveator- Review petitioner. 5. Insofar as first contention with regard to Order dated 15.05.2018 is concerned, it is contended on behalf of respondent No.3 that the judgment passed by this Bench in LPA is very clear that the transfer and posting of the Review Petitioner had not been implemented till 15.05.2018 as no charge was handed over by respondent No.3-Vinod Kumar Gupta, which is evident from the communication dated 15.05.2018 issued by Executive Engineer, Electric, M&RE Division, Kathua. He has also submitted that the Government Order dated 15.05.2018 is a subsequent event after writ petition was filed and dismissed, therefore, any such subsequent event, which has a direct bearing on the Lis, can be taken note of and the Court is duty bound to see if the situation and circumstances have changed or still persist. Therefore, this Court has correctly appreciated subsequent Government Order dated 15.05.2018 and taken it on record, and on the basis whereof the LPA has been decided. In this regard, learned counsel for respondent No.3 has cited the judgment passed by the Supreme Court in a case titled Kedar Nath Aggarwal and another v. Dhanraji Devi and another. A bare perusal of the said judgment reveals that the subsequent events in litigation have to be considered by the Courts in order to appreciate the controversy and adjudicate the same. He has further stated that in fact, as per the dictum of the Apex Court, it becomes duty of the Court to consider subsequent events, which have a tendency to affect the main case. He has further stated that in fact, as per the dictum of the Apex Court, it becomes duty of the Court to consider subsequent events, which have a tendency to affect the main case. Insofar as second contention is concerned, it is stated by the learned counsel for respondent No.3 that the contention of review petitioner with regard to Caveat, is unfounded inasmuch when a motion, petition or appeal is filed before the Registry of this Court, first and foremost the Registry checks as to whether there is any Caveat moved by any person with respect to the said motion, petition or appeal. In the event it is detected or found that a caveat is preferred with respect to the subject matter of the case, then in such situation the mover of motion, petition or appeal, is being asked to furnish an advance copy to Caveator or his/her counsel and only thereafter the motion, petition or appeal would be diarized and numbered by the Registry and it is only after diarizing and numbering that a motion, petition or appeal is being listed before the learned Single Bench or Division Bench. Thus, caveator is being informed well in time about filing and listing of a motion, petition or appeal. It is also stated that the LPA was listed along with Caveat before this Court in supplementary list. However, the matter could not be taken up due to paucity of time. Since the LPA could not be taken up that day, it was again listed in routine, when a Division Bench was available and the case appeared in the supplementary cause list, therefore, complaining that the caveator/Review Petitioner was not issued notice or opportunity of being heard, is not a correct proposition since he was provided copies of the LPA much before and even he knew of previous listing. It was his duty to keep himself informed about listing of the case and it was not the duty of the Court to issue notice on every date of listing. It was his duty to keep himself informed about listing of the case and it was not the duty of the Court to issue notice on every date of listing. Even otherwise this Court had not determined any right of the parties or quashed any order, rather after considering the objections of the Review Petitioner and hearing the counsels of appellant and the State’s counsel had directed to consider and follow order dated 15.05.2018, which was subsequently issued by the State Government, whereby the transfers, which had not been given effect, were to be kept in abeyance. Mr Sawhney has also stated that the transfer of Review Petitioner was affected and demolished by the subsequent order of the Government and not by any direction of this Court and, therefore, if at all aggrieved Review petitioner should have challenged the Government Order, which till date he has not and, therefore, in the guise of a Review Petition, a challenge to the Government Order dated 15.05.2018 cannot be thrown. He has prayed for dismissal of Review Petition as according to him there is no error apparent on the record of the judgment. If aggrieved by Judgment of the Division Bench, the remedy is before the Supreme Court in Appeal or SLP and not a Review Petition. He states that a challenge is thrown to the judgment in the guise of this Review Petition. 6. Learned counsel for the official respondents has contended that in terms of the judgment and order passed by this Bench in LPA No.32/2018, Development Commissioner (Power), vide communication dated 25.06.2018, has taken steps by writing to the Commissioner/Secretary to Government, Power Development Department apprising him about the passing of the judgment dated 07.05.2018 by learned Writ Court and also about judgment and order dated 31.05.2018 passed in LPA No.32/2018. At request, copy of communication dated 25.06.2018 is taken on record. 7. Heard learned counsel for the parties and perused the records. 8. Instant Review is filed against order dated 31.05.2018. This Court, while taking into account subsequent events, has passed the order dated 31.05.2018, modifying learned Writ Court order dated 07.05.2018. At request, copy of communication dated 25.06.2018 is taken on record. 7. Heard learned counsel for the parties and perused the records. 8. Instant Review is filed against order dated 31.05.2018. This Court, while taking into account subsequent events, has passed the order dated 31.05.2018, modifying learned Writ Court order dated 07.05.2018. It may be noticed that learned counsel for appellant-respondent No.3 herein had brought to the notice of this Court a Government Order No. 132-RDD of 2018 dated 15.05.2018 and a copy of communication No.KED/622-23 dated 15.05.2018 issued by Executive Engineer, Electric, M&RE Division, Kathua, addressed to Assistant Executive Engineer, I/C Store Sub Division, Kathua. The Government of J&K State in the Power Development Department has vide Government Order No.132-PDD of 2018 dated 15.05.2018 imposed complete ban on transfer/postings of all categories of employees of Power Development Department while providing certain exceptional cases, i.e., transfer on account of medical emergency/retirement vacancy or some other emergent situation, shall have to be ordered only after seeking prior approval of the Administrative Department. It has also been provided by the aforesaid Government Order No. 15.05.2018 that “any order issued prior to issuance of this order and not implemented so far shall be kept in abeyance”. Also the Executive Engineer, Electric M&RE Division, Kathua, had vide communication No. RED/622-23 dated 15.05.2018 addressed to Assistant Executive Engineer, I/C Store Sub-Division, Kathua, on the subject “Handing over the charge of Divisional Store” advised the latter to handover the charge of receipt of material and charge of issue of material to appellant-respondent No.3 herein after store verification. The said communication had also been forwarded to the appellant-respondent No.3 herein with similar instructions. It was contended by leaned counsel for the appellant-respondent No.3 herein that bare perusal of the aforesaid communication shows that as on date of issuance of Govt. Order dated 15.05.2018, impugned order of transfer had not been fully implemented inasmuch as charge of Divisional Store at Kathua had not been completely handed over to Review Petitioner, as such, in terms of Govt. Order dated 15.05.2018, same was to be kept in abeyance being falling within the ambit of Clause-IV of Govt. Order dated 15.05.2018. Even, the contention of learned counsel for the appellant-respondent No.3 herein that he till date is working and discharging his duties, was not controverted by other side. Order dated 15.05.2018, same was to be kept in abeyance being falling within the ambit of Clause-IV of Govt. Order dated 15.05.2018. Even, the contention of learned counsel for the appellant-respondent No.3 herein that he till date is working and discharging his duties, was not controverted by other side. It was noticed by this Court that appellant-respondent No.3 herein was possessing the charge of receipt of material and charge of issue of material as on 15.05.2018, though Review Petitioner-Sanjeev Kumar submitted his joining on 28.04.2018 afternoon, meaning thereby till 15.05.2018 when Govt. Order No.132-PDD of 2018 dated 15.05.2018 was issued, charge was not handed over to Review Petitioner-Sanjeev Kumar, as such, case would be the one falling within the ambit of clause (iv) of Govt. Order No.132-PDD of 2018 dated 15.05.2018. 9. Keeping these facts into consideration, this Court has passed order dated 31.05.2018 thereby disposing of the appeal with a direction to the official respondents to proceed in the matter strictly in terms of Govt. Order No.132-PDD of 2018 dated 15.05.2018 and modified learned Writ Court order dated 07.05.2018 to that extent. 10. Feeling aggrieved present Review is filed on the ground that Review Petitioner was neither served in the proceedings before this Court nor was he given any notice for listing of the case in the supplementary list though Review Petitioner had already filed a Caveat; and that the pleas which have not been taken in the writ petition cannot be taken in the appeal inasmuch as Govt. Order dated 15.05.2018, by virtue of which the Government has imposed ban on any sort of transfer, was never on record of the writ petition. 11. Learned counsel for the Review Petitioner contended that it would not be proper for the appellate Court to allow a new plea to be taken by the appellant in order to make out a new case as the Review Petitioner has no occasion to controvert the new pleas and there can be no finding recorded in the writ Court on such issue. He further submitted that it would also not be proper for this Court to decide the appeal without hearing the caveator. In support of his submissions, he relied on various judgments passed by this Court and the Hon’ble Supreme Court. 12. He further submitted that it would also not be proper for this Court to decide the appeal without hearing the caveator. In support of his submissions, he relied on various judgments passed by this Court and the Hon’ble Supreme Court. 12. To controvert the stand taken by the Review Petitioner, learned counsel for the appellant-respondent No.3 herein contended that it is settled law that in case subsequent events or facts having bearing on the issues or relief in a suit or proceeding, which any party seeks to bring on record, the Court should not shut its door on noticing the same. All laws and procedures including functioning of courts are all in aid to confer justice on those who knock its door. The Court should interpret the law not in derogation of justice but in its aid. Bringing on record subsequent events, which are relevant, should, therefore, be permitted to render justice to a party, but the Court in doing so should be cautious not to permit it in a routine manner. It should refuse the prayer where a party is doing so to delay the proceedings and to harass the other party or doing so for any other ulterior motive. The Court should also examine whether the alleged subsequent events have any material bearing on issues involved or would materially affect the result of the suit or any proceeding. It is true that no charge was handed over by respondent No.3 to the Review Petitioner, which is evident from the communication dated 15.05.2018 issued by the Executive Engineer’s, Electric M&RE Division, Kathua. Govt. Order dated 15.05.2018 is a subsequent event after the writ petition was filed and dismissed, therefore, this Court has rightly and correctly appreciated the subsequent Govt. Order dated 15.05.2018 as any such subsequent event which has a direct bearing on the lis, can be taken note of and the Court is duty bound to see if the situation and circumstances have changed or still persist. In this regard, learned counsel for the respondent No.3 cited the judgment passed by the Hon’ble Supreme Court in case titled Kedar Nath Aggarwal and another v. Dhanraji Devi and another, 2004 (8) SCC 76 , whereby the Supreme Court has observed that the subsequent events in litigation have to be considered by the Courts in order to appreciate the controversy and adjudicate the same. It is true that as per the dictum of the Apex Court, it becomes the duty of the Court to consider the subsequent events, which have a tendency to affect the main case. 13. In this view of the matter, the Apex Court in case titled Ramesh Kumar v. Kesho Ram reported in AIR 1992 SC 700 held as under: 4. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief. ………….. 5. The submissions of learned Counsel are only partly correct. While it is true that a distinction must be made between pleading and proof, the further submissions that these must necessarily be in two successive sequential stages need not always be so and particularly when dealing with pleas of subsequent events in appeals and revisions. If the allegations of facts made in support of such a plea are denied then alone the question of their proof in an appropriate way arises. If those allegations of facts are admitted, there is no need to prove what is admitted or must be deemed to be admitted. There can be admissions by non-traverse. The High Court proceeded to accept the allegations as proved presumably in view of the fact that appellant's learned Counsel did not even appear, let alone challenge the allegations. But there might also be cases in which, having regard to the nature of the circumstances, the Court may insist upon proof independently of such admission by non-traverse. 14. Another ground of the Review Petitioner is that Review Petitioner was neither served in the proceedings before this Court nor he was given any notice for listing of the case in the supplementary list though Review Petitioner had already filed a Caveat. The proper procedure to be adopted in all cases where caveat has been filed is for the party aggrieved to serve copies of the plaint and application on the caveator’s counsel as the case may be. The proper procedure to be adopted in all cases where caveat has been filed is for the party aggrieved to serve copies of the plaint and application on the caveator’s counsel as the case may be. He must also file the acknowledgement of the receipt of copies obtained from the caveator’s counsel or the caveator as the case may be in court along with application. On receiving such papers the office of the Court shall while fixing the date for the first hearing of the application prepare a note and bring it to the notice of the Court that caveat has been entered and the caveator’s counsel or the Caveators have been served with copies of the plaint and the application. This all has been done in the present case as prior notice was issued to the Caveator. 15. It may be noticed that in the present case, appeal was filed on 16.05.2018 and was first time listed before the Court on 18.05.2018 and this fact was in the knowledge of the counsel for the Review Petitioner as prior notice had already been issued to that extent. Though on 18.05.2018, there was no representation on behalf of both the sides and case was adjourned due to paucity of time and directed to be listed again on 22.05.2018, but on said date it could not be listed for want of appropriate roster. Thereafter, it was listed on 24.05.2018 on which date counsel representing the State was present and with the consensus of the parties, matter was taken up for final hearing at admission stage. Accordingly, this Court heard the counsel for the appellant and counsel representing the official respondents and case was reserved for judgment. It was also observed while reserving the order that though on notice and having information of listing of the caveat, Caveator (Review Petitioner herein) has not come present in person or through his counsel. Therefore complaining that the caveator/Review Petitioner was not issued notice or heard, is not a correct proposition since he was provided copies of the LPA much before and he even knew of previous listing as well. It was his duty to keep himself informed from the cause list and it was not the duty of the Court to issue notice on and about every date of listing. 16. It was his duty to keep himself informed from the cause list and it was not the duty of the Court to issue notice on and about every date of listing. 16. It is worthwhile to mention here that all that Court is expected to do on the face of caveat, is to beware and to hear the Caveator before a decision is taken. It does not create any obligation upon the Court to desist from making any order in the proceeding before it unless the caveat is decided. In the present case, Caveator was very much aware of the listing of the case, as he knew that appeal had been filed and any adverse order could be passed in his absence. Despite listing of the case on 18.05.2018, 22.05.2018 and 24.05.2018, he did not bother to come forward knowing fully well that case had been listed. A Caveator does not get a right to defeat the proceedings at the threshold or to insist that he must be heard on merits of the case before any order is passed. Moreso, the caveat is nothing but a formal notice, which literally is not different from a caution. In the appeal, what was required to be seen is that what stand has been in the writ petition and what in the objections. Moreso, subsequent events can also be seen. No doubt, other side has a right to controvert the subsequent events, but when they did not come forward despite knowing that appeal has been listed thrice, they cannot blame the Court that they have not been heard. It is settled law that Courts can also take judicial notice of all these subsequent events. Even issuance of Govt. Order No.132-PDD of 2018 dated 15.05.2018 and Communication No.KED/622-23 dated 15.05.2018 were not denied by the counsel representing the State. Similar position of law has been dealt by the Apex Court in case Bacchaj Nahar v. Nilima Mandal and others reported in 2008 (17) SCC 491 . Even issuance of Govt. Order No.132-PDD of 2018 dated 15.05.2018 and Communication No.KED/622-23 dated 15.05.2018 were not denied by the counsel representing the State. Similar position of law has been dealt by the Apex Court in case Bacchaj Nahar v. Nilima Mandal and others reported in 2008 (17) SCC 491 . Otherwise also, this Court, while disposing of the appeal, had not determined any right of the parties or quashed any order rather after, considering the objections of the Review Petitioner and hearing the counsels of appellant and the State, had directed to consider and follow Government Order dated 15.05.2018, which was subsequently issued by the State Government whereby the transfers, which had not been given effect, were to be kept in abeyance. 17. Learned Senior counsel representing the Review Petitioner also relied on various judgments passed by this Court and the Apex Court. We have gone through the said judgments, but the same are distinguishable to the facts of the present case and do not render any helping hand. 18. For all what has been stated hereinabove, no ground for review is made out. Accordingly, Review Petition is dismissed.