1.These are two appeals under section 18 of the Rajasthan High Court Ordinance directed against the judgments, of different dates of a learned singe Judge of this Court in S.B. Civil Writ No 513 of 1939 and S.B. Civil Writ No 1284 of 1969 The learned Judge had dismissed the petitions because the Union of India was not made a party. As a common question arises in both the appeals, they are being disposed of by a common judgment,
Petition No. 513/69.
2 Petitioner Ranjeet Mal was an employee of the Northern Railway and was removed from service with effect from January 2. 1609, by an order Ex 5 of that date The General Manager, Northern Railway, reject his appeal on March 25/26, 1369 On May 23, 1969 be preferred a petition under Article 226 of the Constitution impeding General Manager, Northern Railway. New Delhi and the Financial Advisor and Chief Accounts Officer, Northern Railway, New Delhi, as respondents. A preliminary objection was raised on October 29, 1971 that the writ petition was not maintainable because the Union of India was not joined as a party and it should, therefore, be dismissed, A copy of this objection was given to the counsel for the petitioner on October 29,1971. On October 27,1972 an application was nude for leave to mend the writ petition and when it came to be considered on November 16. 1973, the petitioner's counsel suggested that it may be heard along with the writ petition and he also made an application under Section 5 of the Limitation Act for condoning the delay. In the application under Section 5 of the Limitation Act it was asserted that the petitioner prepared an application on October 30, 1971 for adding the Union of India as a respondent out it was discovered in the month of October 30, 1972 that the application dated October 30,1971 was lying in the pad of the papers in the office of the learned counsel for the petitioner and in was on account of the inadvertence of the learned counsel that the application came to be presented on October 27,1972. The learned Judge held that it could not be characterised as bonafide mistake as no sufficient cause was shown within the meaing of Section 5 of the Limitation Act for there was lack of due care and attention The application for amendment was dismissed. As the petitioner failed to imp lead the Union of India, the petition was dismissed.
Petition No. 1284169.
3. Uma Datt Kaushik, the petitioner, was working as an Assistant Booking Clerk at Phulra when a departmental inquiry was held against him and he was eventually removed from service. He filed a revision before the General Manager which was dismissed on November 18,1969 The petitioner moved a petition on September 8,1969 under Article 226 of the Constitution of India challenging his removal, The General Manger, Western Railway, Church gate Bombay, the Divisional Superintendent, Jaipur Division, Western Railway. Jaipur and the Divisional Commercial Superintendent, Western Railway, Jaipur Divisional. Jaipur, were imp leaded as respondents. The e respondents filed a reply on February 14, 1972 that the petition was not maintainable as the Union of India, a necessary party, had not been imp leaded. The petitioner filed a rejoinder on April 10,1972 but he did not care to deal with the objection regarding the non-joinder of the Union of India When the case came to be heard on September 24,1973 an application was moved to make the Union of India as a respondent. The learned counsel offered no explanation for the inordinate delay and the learned single Judge held that the application for amendment was belated and was therefore dismissed As the Union of India was a necessary party and it was not before the Court the writ petition was dismissed.
4. We had issued a notice to the respondents to show cause why the appeals be not admitted and Mr. Bhansali appeared in answer to the notice on behalf of the respondents in both the appeals.
5. The principles in regard to the necessary and proper parties in petitions for a writ of certiorari have been elucidated in Udit Narain Singh Malpabaria v. Additional Member, Board of Revenue, Bihar and Anr : AIR1963SC786 In para 7 of this judgment their Lordships have observed:
To answer the question raised it would be convenient at the cutset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled ; it is enough if we state the principle. A necessary party is one without whom no order can be made effectively ; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.
In para 8 their Lordships observed :
The next question is, what is the nature of a writ of certiorari What relief can a petitioner in such a writ obtain from the Court Certiorari lies to remove for the purpose of quashing the proceedings of inferior courts of record or other persons or bodies exercising judicial or quasi judicial functions. It is not necessary for the purpose of this appeal to notice the distinction between a writ of certiorari and a writ in the nature of certiorari in either case the High Court directs an inferior tribunal or authority to transmit to itself the record of proceedings pending therein for scrutiny and, if necessary, for quashing the same....
In para 9 their Lordships observed :
The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the paid order without the successful party being before it Without the presence of the successful party the High Court cannot issue a substantial order effecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interest are directly affected is, therefore, a necessary party.
In Gopal Lal Swarnkar v. Director of NCC, Rajasthan, Jaipur and Ors. 1972 WLN 687 Shinghal, J has taken the view that if an effective decree cannot be passed in the absence of a party such a party is a necessary party.
6. The short and yet a vital question which arises before us is, whether the Union of India is a necessary party or a proper party in these two writ petitions
7. On the tests laid down by the Supreme Court in Udit Narain Singh case (1), mentioned above, in the dispute between the petitioners and the Union of India the latter was the successful party and the tribunals constituted under the various Railway rules had decided the dispute in favour of the Union of India, which was bound to be visited with certain liabilities if the orders passed by the Railway officers were quashed. Taat decision was being challenged by means of these petitions and therefore on the acid test laid down in the Supreme Court's judgment AIR 1963 SC 786 the Union of India was a necessary party, who could not be bound by the decision of this Court unless it was present before the Court We are, therefore, in agreement with the view taken by the learned Single Judge that the Union of India was a necessary party.
8. A question arose in the Kerala High Court in Kerala State v. General Manager, Southern Railway, Madras AIR 1967 Kerala 277 where the import of Section 3(6) the Indian Railways Act came to be considered. It is true that it was in regard to a suit but the same principle would apply to a petition for certiorari in the context before us because if the petitioners' writ petitions succeeded, certain liabilities would have arisen against the employer, namely, the Union of India. The learned Judges of the Kerala High Court, inter alia, observed:
A suit, therefore, against a railway administration is in substance and in reality a suit against the Government or the State owning the railway. In the case of a railway administration owned by the Union of India, the Union of India represents the railway administration and must be made a party to the suit. A suit against a railway administration owned by the Central Government, must be therefore instituted against the Union of India, and not against the Manager of the particular railway administration. AIR 1950 Nag 85, Dissented from; AIR 1024 Bom 306 and AIR 1028 Bom 421 and AIR 1031 Pat 326 and : AIR1960Ker257 and AIR 1053 Assam 193, Relied on.
We are in respectful agreement with the view taken by the Kerala High Court AIR 1967 Kerala 277 Section 70 of the Code of Civil Procedure also lays down that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be in the case of a suit by or against the Central Government, the Union of India. On this analogy as well the Union of India was a necessary party.
9. The next question in the petition No. 513/69 is whether the learned single Judge was right in refusing the application under Section 5 of the Limitation Act Mr. Lodhe relied upon Virappa Andandaneppa Manvi and Anr. v. Mahedevappa Basappa Katti and Anr. AIR 1034 Bom 356 and urged that in the case of an over sight by an advocate in the matter of including a party to a proceeding, the court was justified in permitting the inclusion This case is regulated by its own facts and cannot lay down a universal principle for the exercise of a discretion conferred by Section 6 of the Limitation Act We are not inclined to disturb the exercise of discretion by the learned Single Judge because we cannot call it incorrect.
10. Mr. Lodha also submitted that the Railway Budget is separate from that of the General Budget and therefore Railway was a different entity. We are unable to agree. The Union of India is the owner of the Railways. It may arrange its financial affairs as it finds convenient but that would not create a different entity as the owner of the Railways.
11. In Writ Petition No. 1284/60 even when the objection was taken on behalf of the respondents that the Union of India was a necessary party and rejoinder was filed to this reply, the petitioner did not wake up to the necessity of making Union of India as a party. It was only on the day when the arguments were finally beard that it dawned upon the petitioner's learned counsel to owe the court more than 3 years after the filing of the writ petition and therefore we cannot characterise the rejection of the application by the learned Single Judge as improper or incorrect warranting any interference.
12. The result is that these two appeals fail and are dismissed in limine but we make no orders as to costs.