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J.R. Anand Vs. Delhi Transport Corporation - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Appeal No. 2346 of 1980 and Civil Writ Appeal No. 39 of 1979
Judge
Reported inILR1981Delhi877; 1981LabIC1286
ActsDelhi Higher Judicial Services Rules, 1970; Constitution of India - Article 226
AppellantJ.R. Anand
RespondentDelhi Transport Corporation
Advocates: A.B. Saharia,; P.N. Lekhi,; M.K. Garg and;
Cases ReferredRadhey Sham vs. Lieutenant Governor and Others.
Excerpt:
.....of india - article 226--intervention in certiorary proceeding by a relator in the connected quo warranto proceeding--the court can permit intervention in writ petition in certain cases under the inherent power--no specific provision in high court rules.; in the instant case, the question arises whether a relator in quo warranto proceeding can be permitted to intervene in a certiorari proceeding. the applicant is the president of the delhi parivahan madoor singh which is a trade union registered under the trade union act of the workers and employees of the delhi transport corporation (d.t.c.). the other writ petition has been filed by the petitioner against the d.t.c. and is against the order of the d.t.c. removing him from service. the question to be decided in the present..........39 of 1979 is a petition for writ of certiorari for quashing the order of removal passed against anand. writ petition no. 1269 of 1980 is a petition for quo warranto calling upon anand to show the legal authority to hold the post of deputy general manager in dtc. in both the petitions the impugned orders are challenged on the grounds of mala fide. it is alleged in the petitions that the decisions were taken on political considerations which are extraneous and irrelevant to public interest and administration of dtc. in first petition allegation is that the order of removal passed against anand was passed by janata government for alleged participation in 'emergency excess'. on the other hand, the allegation in the quo warranto petition is that the appointment of anand as deputy general.....
Judgment:

S.B. Wad, J.

(1) This is an application for intervention in Civil Writ No. 39179. The application raises a somewhat vexed question of law. The question is whether a relator in a quo warranto proceeding can be permitted to intervene in a connected certiorari proceeding. The applicant is one Om Prakash Modi. President of the Delhi Parivahan Mazdoor Sangh. Delhi Parivahan Mazdoor Sangh is a trade union registered under the Trade Union Act of the workers and employees of Delhi Transport Corporation (for short DTC). The application is made under Order I Rule 10(2) and Rule 8(A) read with Section 151 of the Code of Civil Procedure. Writ petition No. 39 of 1979 is filed by one J. R. Anand against the DTC. This writ petition is directed against the order of the Dtc removing him from service. At the relevant time Anand was working as a Traffic Manager in the DTC. The counsel for Anand fairly conceded at the time of the hearing that although one of the prayers in the application is for impleading the President of the Sangh as a party respondent the application can also be treated as one for intervention. Permitting a third party to intervene in a pending proceeding is a matter of discretion of the Court. The object always is to fully and finally settle the controversy and to administer justice. The facts and circumstance of each case would decide whether intervention is justified or not. Let me narrate the facts. The application for intervention is as follows :

'1.That Shri J. R. Anand filed the above-mentioned Writ Petition challenging the order removing him from the services of Respondent No. I with effect from 3-8-1978. The said Writ Petition was admitted by this Hon'ble Court and the same is still pending for disposal. 2.That the Respondent Delhi Transport Corporation filed its counter in the said Writ Petition and contended that the impugned order removing Shri J. R. Anand from the services is illegal and valid. 3. That thereafter the Delhi Transport Corporation without any legal authority, jurisdiction and arbitrarily appointed the said Shri J. R. Anand on the post of Deputy General Manager (Traffic) on 30th July,1980. 4. That as the said order of appointing Shri J. R. Anand on the post of Deputy General Manager (Traffic) was illegal, arbitrary, without jurisdiction and unconstitutional, the Petitioner filed a writ of quowarranto (Writ Petition No. 1269 of 1980) and the said Writ Petition is still pending for preliminary hearing. The Delhi Transport Corporation entered a Caveat in the said Writ Petition and Dr. Anand Parkash, Senior Advocate along with Shri Raj Birbal Advocate appeared before this Hon'ble Court at the time of preliminary hearing of the said Writ Petition. 5. That when the petition came up for hearing on 17th October, 1980 Shri Anand Parkash, Senior Advocate on behalf of Delhi Transport Corporation made a statement in the Court that the Delhi Transport Corporation is going to concede the Writ Petition filed by Shri J. R. Anand i.e. Writ No. 39 of 1979. It is submitted that the said act on the part of Delhi Transport Corporation is only with the sole object to validate the illegal appointment of Shri J.R. Anand as Deputy General Manager (Traffic) and it is nothing but an abuse of the process of the Court. 6. It is, thereforee, in the interest of justice, equity and fair play that the applicant may allowed to be imp leaded as Respondent to the aforesaid Writ Petition to enable him to prosecute the matter in the event Delhi Transport Corporation concede the same. The Dtc, a public body cannot be permitted to play fast and loose with its oath, public office, public funds and the statutory conditions of service. The applicant is the President of the Delhi Parivahan Mazdoor Sangh which is a registered organisation under the Trade Unions Act and as such is vitally interested in the working of the Delhi Transport Corporation as such is a property of the proceedings. It is also one of the Petitioners in the quo Warrant proceedings.'

(2) Writ petition No. 39 of 1979 is a petition for writ of certiorari for quashing the order of removal passed against Anand. Writ petition No. 1269 of 1980 is a petition for quo warranto calling upon Anand to show the legal authority to hold the post of Deputy General Manager in DTC. In both the petitions the impugned orders are challenged on the grounds of mala fide. It is alleged in the petitions that the decisions were taken on political considerations which are extraneous and irrelevant to public interest and administration of DTC. In first petition allegation is that the order of removal passed against Anand was passed by Janata Government for alleged participation in 'emergency excess'. On the other hand, the allegation in the quo warranto petition is that the appointment of Anand as Deputy General Manager is an act of political favoritism' of the Congress Government which came into power in 1980. Thus the mutual allegations are two sides of the same coin and are thus inextricably connected. That is why the Court ordered that the said writ petitions should be heard together.

(3) It is an admitted fact that the Dfc is net interested in contesting the first petition filed by Anand. This is in view of the fact that the Dtc Board has now resolved to reinstate Anand and to take him back in Dtc service. No final order of reinstatement is passed so far because clearance from the Vigilence Department is still awaited. Although the quo warranto petition is primarily directed against Anand he has not preferred to file any counter affidavit. He has relied only on the counter affidavit of respondent No. 2. the Secretary of the DTC. In the said counter affidavit the Secretary of the Dtc has quoted the resolution of the Board to the effect 'Board unanimously hold that Shri Anand's contention that he had been victimised was justified. The Board, thereforee, decided that Resolution No. 95178 dated 3-8-78 be revoked and Shri J. R. Anand should be re-instated as Traffic Manager'. The allegations of Anand in his writ petition are extensively summarised in this counter affidavit. Para 16 states 'The case of respondent No. 3 (J. R. Anand) in his writ petition is that he has been removed with pre-planned conspiracy with mala fide inten on for political reasons'. In reply to para 33 it is stated in the counter affidavit 'The present petition has been filed for personal and political reasons for dubious purposes. The Hon'ble Court has already directed for production of file of Writ Petition No. 39/78 of respondent No. 3 for challenging his removal. The respondent shall rely on the record of that petition to show that the present writ petition has been filed with mala fide intention and is an abuse of the process of the Court'.

(4) Mr. Lekhi, appearing for the intervener submits that one of his rounds of challenge in the quo warranto petition is that a person removed for proved misconduct cannot be re-appointed in any capacity in the Dtc service. Mr. Anand's petition, he submits, challenges legality of his removal on several legal grounds. His client, thereforee, has a vital stake and interest in the said petition. He submits that his quo warranto petition would be pushed to a precarious and if Anand's petition is allowed by this Court. Mr. Saharya, appearing for Anand, assails this submission. He states that a relator in a quo warranto petition must proceed on certain assumption. In the present case he must proceed on the footing that the order of removal was subsisting on the date of the filing of the petition. Quo warranto is a separate proceeding in relation to the Office of the Deputy General Manager and has nothing to do with the post of Traffic Manager which is the subject matter of the writ petition, filed by Anand. He further submits that the applicant in the present application has no interest whatsoever in Anand's petition and he is an inter-meddler. He emphasises that principle of locus standi in a quo warranto proceeding and in the certiorari proceeding. He submits that a writ of certiorari challenging the disciplinary proceedings is a matter between the Disciplinaiy Authority and an individual employee. A third party is no way concerned with such proceedings. The relator in a quo warranto proceeding, where the requirement of locus standi are most liberal, cannot be permitted to join certiorari proceedings as a party respondent. He submits that to the best of his abilities he could not find a single case where a third party is allowed to Join certiorari proceedings, as party respondent.

(5) Mr. Lekhi, then submits that in the writ petition filed by Anand, the Dtc has filed its counter affidavit justifying the action of removal. He strongly submits thatthe DTC's present stand of not-contesting Anand's petition without even formally withdrawing its original counter affidavit, is not honest and bona fide. He then submits that in these circumstances. The Court would be deprived of legal assistance in coming to a proper conclusion on the question of the removal of Anand. The facts on which the quo warranto petition has been filed, would show that the petitioner in the quo warranto proceeding is perhaps the only person who can assist the Court in these peculiar circumstances. Mr. Saharya's answer is that the Corporation is entitled to take its own decision to contest the matter or not and it is for the Court to decide what assistance is necessary. The petitioner in quo warranto proceeding cannot thrust himself as he has no legal right to do so. The third contention of Mr. Lekhi is that the Dtc Sia.5 itself relied heavily on writ petition No. 39 of 1979 for meeting the allegations in the quo warranto proceeding. There cannot be any objection on principle for his client to appear in a petition and to demonstrate how the allegations and contentions of Mr. Anand in his petition, are wrong.

(6) As a legal submission Mr. Saharya has raised another objection. He submits that there is no provision for intervention in the High Court Rules. He further points out that addition of an Explanationn to Section 141 of the Code of Civil Procedure made by Act No. 104 of 1976, excludes application of the provisions of Order I to writ petitions under Article 226 of the Constitution. The Explanationn runs : 'In this Section. the expression 'proceedings' includes proceedings under Order Ix, but does not include any proceeding under Article 226 of the Constitution'. He further submits that a relator in.a quo warranto proceeding cannot be said to be a person 'interested in any question of law which is directly and substantially in issue' in a certiorari petition. He further states that no 'public interest' would be served in allowing the relator in the quo warranto proceedings to participate in Anand's petition: On this premises he submits that the relator in the present proceedings cannot press in service Rule 8-A of Order 1 of the Code of Civil Procedure. Mr. Lekhi submits that his client has a direct interest in the certiorari proceedings and the issues raised in both the petitions have some public importance.

(7) It is true that the provisions of the Code of Civil Procedure are, in terms, not applicable to writ petitions. It is also true that there is no express provision for intervention in the High Court Rules regarding the writ petitions. The question however, in this As a writ Court is there no inherent power to permit intervention, if on facts and circumstances it is satisfied that intervention is called for. The answer is yes. There is no express provision in the Supreme Court Rules for intervention generally except in Order 43. That Order permits Attorney General and Advocate Generals to take part in the supreme Court proceedings under certain circumstances. Even then, it is a matter of common knowledge, that the Supreme Court permits intervention in appropriate cases. It permits intervention even inpetitions under Article 32 of the Constitution. Clause 3 of Rule 2 of Order Vi of the Supreme Court Rules provides for an application for intervention to be heard by a Chamber Judge.

(8) In Mohd. Hanif Quareshi and Others vs . The State of Bihar, : [1959]1SCR629 , the Supreme Court has adverted to inherent power, of permitting intervention. That was a petition under Article 32 of the Constitution challenging constitutional validity of Cows Slaughter Legislations of U.P., Bihar, C.P. and Berar. Some social organisations against Cows Slaughter asked for intervention. The Supreme Court rejected the application. The reasons for rejection are quite important. The Supreme Court held 'Under Order Xli, rule 2, of the Supreme Court Rules intervention is permitted only to the Attorney- General of India or the Advocates-General for the States. There is no .other express provision for permitting a third party to intervene in the proceedings before this Court, In practice, however, this Court, in exercise of its inherent powers, allows a third party to intervene when such third party is a party to some proceedings in this Court or in the High Courts where the same or similar questions are in issue, for the decision of this Court will conclude the case of that parly. In the present case, however, the petitioners for intervention are not parties to any proceedings and we did not think it right to permit them formally to intervene in these proceedings; but in view of the importance of the questions involved in these proceedings we have heard Pandit Thakurdas Bhargava, who was instructed by one of these petitioners for intervention, as amices curiae'. The question of intervention was again considered by the Supreme Court in Khyerbari Tea Co. Ltd., and another vs . State of Assam and others, : [1964]5SCR975 (2). This was a writ petition under Article 32 of the Constitution. The petitioner bad challenged validity of certain provisions of Assam Taxation (On Goods Carried by Road or on Inland Waterways) Act, 1961. He also sought a mandamus restraining the State Government to enforce certain operative provisions against them. Some writ petitions were already filed in the Assam High Court under Article 226 of the Constitution and were already allowed. The Assam Government got certificate to file appeal in the Supreme Court. The Supreme Court permitted intervention by the respondent in the pending appeals. Mr. C. S. Pathak appeared for the interveners. The Supreme Court while allowing the intervention decided the extent and scope of the intervention also in the following terms:

'WEwould permit him to raise all points in support of the view taken by the Assam High Court and would not confine him to the points which have been taken by the petitioners in their petition before us.............normally, the learned counsel for the intervener is not allowed a right of reply, but having regard to the fact that Mr. Mazumdar (counsel for the petitioner) requested us to allow Mr. Pathak to lead him in the present proceedings, we have allowed both Mr. Pathak and Mr. Mazumdar to open the case and have heard both of them in reply'.

A few principles regarding intervention can be reduced from these illustrative cases:

(1)Intervention as well as its extent and scope is a matter of discretion of a writ Court. (2) Intervention is permissible where two or more connected proceedings are pending in the High Court. (3) Two or more proceedings should be so connected that decision in one is likely to conclude other proceedings. (4) Importance of the questions involved is a necessary consideration in the exercise of the discretion. (5) Discretion has to be exercised on the. facts and circumstances of each case.

(9) In both the petitions before me important question for decision is whether the two decisions of the Dtc are vitiated because of the extraneous political considerations. As stated earlier the allegations in this regard are two sides of the same coin. They are inextricably connected. The importance of the question does not lie in the political facts as alleged. Put the question is whether public utilities affecting very large number of its employees and citizens generally, can in law take vital decisions on extraneous considerations. This question is of paramount importance to the working and administration of public utilities. The incidental question is where the Vigilence Commissioner finds that an high official commits misconduct involving turpitude, a public utility like Dtc can re-appoint such an official on an equivalent high post. In Anand's petition the Dtc now wants to play a role of spectator. It had earlier filed a counter affidavit justifying the action of removal of Anand. It is also heavily relying on Anand's allegation in his petition, for contesting the qua warranto petition. There is no doubt that if Anand's petition is allowed to go un-contesting and inevitably succeeded, the quo warramtp proceedings would gravely suffer. If Anand succeeds in his petition m these circumstances, the Dtc will on its own showing re-instate him as a Traffic Manager. The counsel for the Dtc in the qua warranto proceeding has already submitted that on re-instatement of Anand the present appointment of Anand as a Deputy General Manager would be cancelled. In such any eventuality qua warranto petition may become infractuous. These crcumstances impel me to exercise discretion in favor of the petitioner in the quo warranto proceeding. The said petitioner is the President of the Association of the workers and employees of the DTC. The Association is also a petitioner in the quo warranto proceedings. It cannot be said that the entire body of workers and employees of the Dtc are merely busy bodies or professional litigants or 'middle-some interlopers' particularly when the principal of worker's participation in management is accepted by Government.

(10) Mr. Lekhi has cited some decision in support of his contention that the petition in the quo warranto proceeding can be permitted to join as a party respondent in Anand's petition. They are Makhan Lal Chakrabnrty vs . S. K. Chatterjee and others, : AIR1954Cal208 (3), Radhey Sham vs. Lieutenant Governor and Others. (1970) 2 Del 260, E.H. Tippoo and another vs . The Hon'ble The Chief Justice of India and others, : AIR1971Cal354 (5) and Dr. Satyanarayana Sinha vs . M/s. S. Lal and Co. (P.) Ltd., : [1974]1SCR615 (6). These decisions are on the question of locus standi and proper party In a writ petition, Mr. Saharya has tried to distinguish these authorities. His main contention is that most of these cases are cases of mandamus and are not applicable to a certiorari proceeding. His second contention is that in these decisions the question involved was one of joining a third party as a petitioner and not as a party respondent. His third submission is that in all such cases a third party is an aggrieved party having a personal interest in the matter. It is not necessary to dwell deeper on these cases regarding locus standi for a party because I am of the opinion that the petitioner can he permitted to intervene in Anand's petition. He may or may not be a party respondent. However the principles of law emerging from the said decisions can be noted. In : AIR1954Cal208 (supra) one of the principles laid down by that High Court is 'If a necessary party or a party likely to be affected by the writ on order, or a party whose presence may be necessary to make the writ effective is not before the Court, the Court may, either upon an application made for that purpose, or of its own motion direct that such a party be added and the rule nisi served upon him, or simply that the rule nisi be served upon him, or even that he may be allowed to be present at the hearing without being served with a rule nisi. In such a case the person served with the rule nisi or a permitted to attend the hearing, would be deemed to be a party and be entitled to show cause or support or oppose a cause already shown'. (1970) 2 Del 260 (supra) is a case of a writ of certiorari. The decision is rendered by the D.B of this Court on an application for certificate under Article 133(l)(c) of the Constitution. This Court had earlier held that Radhey Sham had no locus, standi to participate in the tertiorari proceedings. The petition concerned with ownership of an open sight belonging to Government. Delhi Wakf Board claimed it to be its property. The D.D.A. and the D.M.C. after initially ascerting the Government's right subsequently considered the right of the Wakf Board by a resolution passed by the D.M.C, Radhey Sham challenged the surrender of right by the Government on the ground that the said decision was taken on grounds which were political, extraneous and irrelevant. He. claimed that he was residing in the neighborhood, was a rate-payer and was interested in keeping the land as a open sight for a children's park, which was its original object. In the writ petition the Union of India and Lt. Governor contrary to their previous stand supported the Wakf Board. The D.B. after reviewing several decisions, English as well as Indian, found that Radhey Sham had a special interest and he should not be called a professional litigant or meddle-some interloper in any sense. The D.B. further held 'It is true that the Court has a discretion ill granting certiorari but the requirements of locus standi for certiorari and prohibition are not rigid. Even if a direction in the nature of mandamus is to be a proper remedy, the special interest of the petitioner would entitle him to seek it'. The D.B. thereforee granted certificate to Radhey Sham. The serious difficulties faced' on a question of impleading a third party is voiced by the Supreme Court in : [1974]1SCR615 (supra). After reviewing some decisions the Supreme Court observed : 'In respect of persons who are strangers and who seek to invoke the jurisdiction of the High Court or of this Court, difficulty sometimes arises because of the nature and extent of the right or interest which is said to have been infringed, and whether the infringement in some way affects such persons. On this aspect there is no clear enunciation of principles on which the Court will exercise its jurisdiction.' The Supreme Court, however, referred to the practice of the English Courts where the matter is left to the discretion of the Court. The Supreme Court observed : 'In England also the Courts have taken the view that when the application is made by a party or by a person aggrieved the Court will intervene ex debito justias, in justice to the applicant, and when it is made by a stranger the Court considers whether the public interest demands its intervention. In either case it is a matter which rests ultimately in the discretion of the Court.'

(11) A somewhat similar principle is now recognised by incorporation of Rule 8-A in Order I of the Code of Civil Procedure by the amending Act of 1976. If a Court is satisfied that it is necessary in the public interest, the Court may permit a person or abody of persons to present its opinion or to take part in a pending suit as the Court in its discretion may specify. The Law Commision of India in its 54th Report on the Code of Civil Procedure, 1980 has explained the reasons for incorporation of Rule 8-A. It has referred to the provisions of the Fundamentals of Soviet Civil Legislation in this regard and has found that 'the Code has, at present, no provision for permitting the joinder of an organisation interested in the legal issues in a suit, i.e. the organisation which, though not concerned with the narrow questions of fact arising between the parties, has a view to offer on some broader issues........:. some such provision suitably adapted, of course so as to suit Indian conditions would be useful. It is true that it may not be in harmony with the adversely system on which our procedure is based. Some safeguards may also be required, in order to prevent busy bodies from interfering with private disputes. Nonetheless, it would be worthwhile inserting a provision which could be pressed into service in suitable cases. This will not exactly the same as the practice of appointing an amices curaie, because the organisation concerned would have its own views to present, and its role would not be confined to assisting the Court, though its participation may help the Court in elucidation of some of the issues.' The Law Commission recommended that both the private persons and the organisations should be permitted to participate and this is accepted in Rule 8-A. Can it not be said that this new principle has a greater validity to extraordinary proceedings of writ

(12) For the reasons stated above I allow applicant Om Prakash Modi, President of Delhi Parivahan Mazdoor Sangh to intervene in write petition No. 39 of 1979, and to address the Court on all question raised by the petitioner in that writ petition. However, he will not have any right to file a counter affidavit or a right of reply. Facts stated here are merely, summary of respective allegations. They .are not the final findings of the Court.


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