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Judgment
Om Prakash VII, Member (J)
Shri Avnish Tripathi, learned counsel for the applicant and Shri Dharmendra Tiwari, Shri M P Mishra and Shri PK Dubey, learned counsel for the respondents, were present at the time of hearing on Recall Application.
Recall Application No 6378 of 2024 has been filed by Shri Dharmendra Tiwari, counsel for the respondent no.5
The Recall Application has been filed by Shri Dharmendra Tiwari praying to recall the order dated 22.11.2023 passed by this Tribunal in the subject OA by way of which the Tribunal, recording that none present for the respondent no. 5 despite service of the notice, listed the matter for final hearing thereby deeming that opportunity for the respondent no. 5 to file counter stood closed.
Arguing on the recall application, Shri Dharmendra Tiwari submitted that the subject OA was filed by the applicant challenging the appointment of the respondent no. 5 i.e., the deponent who was appointed on the post of Watchman after qualifying the recruitment process. Thus, being the necessary party, the deponent is liable to be heard before passing of any final decision on the subject OA. Learned counsel argued that although the notice was received by the deponent, who after discussing the matter with legal expert, decided to file a suitable counter affidavit on 25.11.2024 in this case but could not file the same. Learned counsel further argued that the opportunity of filing counter for respondent no. 5 was closed by the Tribunal vide order dated 22.11.2023 as service of notice upon the respondent was deemed sufficient. It was further argued that a bare perusal of the order dated 22.11.2023 reveals that the Tribunal did not make any observation regarding closing of right of respondent no. 5 for filing counter affidavit. Referring to the contents of the affidavit annexed with the recall application, learned counsel further prayed that it is necessary and expedient in the interest of justice that order dated 22.11.2023 be recalled and respondent no 5 be given opportunity to file counter in the case otherwise he will suffer irreparable loss and injury.
Shri Avnish Tripathi, learned counsel for the applicant rebutted the pleadings as advanced in the Recall Application and by way of his objection dated 16.12.2024 filed against the recall application, he argued that direction for issuing notice to the respondent no. 5 was given by the Tribunal vide its order dated 28.04.2015 in compliance of which notice was sent to the respondent no. 5 on 06.05.2015 which was not returned back. Thus, it was presumed that notice was served upon the respondent no. 5 and the same was recorded by the Tribunal in the order dated 28.04.2015. However, even after receiving the notice, the respondent no. 5 did not turn up to contest the case nor counter was filed on his behalf till the date of passing of the order dated 22.11.2023 by which the Tribunal recorded that none was present on behalf of the respondent no. 5 despite service of notice upon him and therefore listed the matter for final hearing. This makes it clear that the respondent no. 5 was never interested in contesting this case and now when pleadings have been exchanged, this misconceived recall application has been filed at his end only to further delay the deliverance of justice. Thus, referring to the entire facts as argued upon, learned counsel for the applicant that the instant recall application is liable to be rejected and the OA be heard finally at this stage itself.
We have considered the rival submissions and carefully gone through the recall application.
A perusal of the previous order sheets reveals that in its order dated 21.09.2023, the Tribunal recorded that:
“Notice has already been issued to the respondent no. 5. As no notice returned back after service and more than one month has already been passed, it is presumed that the notice has been served upon the respondent no. 5. List on 22.11.2023.”
Subsequently, when the matter came up for hearing on 22.11.2023, following order was passed:
“None present for the respondent no. 5 despite the service of the notice. Pleadings have been exchanged in the matter. Accordingly, list ton 11.01.2024 for final hearing.”
A perusal of the aforesaid quotation reveals that the service of notice upon the respondent no. 5 was deemed sufficient on the basis of “presumption” and not on the basis of “actual service”. Since the respondent no. 5 is a necessary party the appointment of which has been challenged by the applicant in the subject OA, it is in the fitness of things as well as in the interest of justice that the respondent no. 5 be heard at length before a decision on the original application is arrived at. Thus, the instant recall application is allowed subject to deposition of cost of Rs. 1,000/- by the deponent Shri Digambar Prasad before the CAT Allahabad Bar Association. The receipt regarding deposition of cost be produced before the Court on the next date fixed in the matter by way of an affidavit. Associated MA No. 1706 of 2025 also stands disposed of.
Counter on behalf of the respondent no. 5 may be filed within four weeks. Rejoinder, if any, may be filed within two weeks thereafter. If the same has already been filed, Registry is directed to take the same on record.
List this case on 03.07.2025.