ivil Appeal No 3224 of 1989
From the Judgment and Order dated 6983 of the punjab  769 Haryana High Court in RSA No 1092 of 1975
MR Sharma and MC Dhingra for the Appellant
Anil Dev Singh PP Singh and CVS Rao for the Re spondents
The Judgment of the Court was delivered by RANGANATH MISRA J
Special leave granted
Appellant was recruited as an Assistant Executive Engi neer in the Military Engineering Service upon his selection by the Union Public Service Commission through the combined Central Engineering Service Examination of 1960 and he joined as an Assistant Executive Engineer on 2441962
A provisional seniority list was prepared in August 1963 as claimed by him and the appellant represented that his previ ous service under the Central Government in consideration of which he had been given three increments at the time of joining should have been taken into account
In January 1967 the seniority list was published where as the appel lant pleaded he was shown at the 483rd position
He repre sented against the lower placement and asked for placing him at the appropriate place
The Departmental Promotion Commit tee did not consider him for promotion on the basis of his lower placement in the seniority list and he was not promot ed
Appellant therefore filed a suit for redress of his grievance of lower placement and for consequential reliefs
The suit was dismissed
Appellant s appeal before the Dis trict Judge was also dismissed and thereupon the appellant went before the High Court in second appeal but that too was dismissed
It is against the judgment of the High Court affirming those of the Courts below that this appeal has been brought before this Court
Before we go into the merits of the matter we must indicate that the case has not been appropriately placed in the Courts below and relevant material has not been made a part of the present record
The claim in this litigation has to be considered in the backdrop of two earlier cases Bachan Singh vs Union of India  is the judgment of this Court where a dispute relating to the same Military Engineering Service involving inter alia of a claim of seniority came to be disposed of by a Constitution Bench
It is not necessary to refer at any length to the judgment in view of the fact that the result of 770 the subsequent litigation in the case of A Janardhana vs Union of India  Ors  would be sufficient for the present Notice was given in this appeal to hundreds of respond ents whom the appellant had impleaded but no one has ap peared to contest his claim in this Court
There has been no dispute in the Courts below and here too that the appellant has been legally recruited to the Service
In Janardhana s case at p 618 of the Report this Court held Keeping in view the exigencies of service and the requirements of the State temporary
posts would be a temporary addition to the strength of the cadre unless it is made clear to the contrary that the temporary posts are for a certain duration or the appointments to temporary posts are of an ad hoc nature till such time as recruitment according to rules is made
In the absence of any such provision persons holding permanent posts and temporary posts would become the members of the service provided the recruitment to the temporary posts is legal and valid
Once the recruitment is legal and valid there is no difference between the holders of permanent posts and temporary posts insofar as it relates to all the numbers of the service
 In the instant case the Union of India accepted the position that recruitment through the Union Public Service Commission had been regularly made and the post was not a temporary one but as the performance of the appellant had not been of a high order he had been placed below treating him to be temporary a position for which there is not much of legal support
Some controversy was raised as to whether Janardhana s decision would operate as res judicata in view of the fact that the appellant had been impleaded in the litigation
Janardhana s civil appeal before this Court arose out of a writ petition in the High Court and as paragraph 36 of the judgment at p 625 of the Report indicates By an order made by the High Court the names of respondents 3 to 4 18 in which the appel lant was included were deleted since notices could not be served on them on account of the difficulty in ascertaining their present 771 addresses on their transfers subsequent to the filing of these petitions
 It is not the case of the respondent that the appellant had volunteered to appear in the writ petition or before this Court in the Janardhana s dispute
Strictly speaking Janardhana s decision may not have the effect of res Judicata for the present litigation but we do not think in a dispute of the present dimension where hundreds of employees are concerned it would be proper for the employees to litigate over the same issues from time to time
If it would be open to members of the service from time to time to raise disputes of the same nature and intro duce uncertainty into the Service that would affect the efficiency of the service and would be against public inter est
That also would call into jeopardy the guarantees of public service and expose the officers into an atmosphere of insecurity
A seniority list of a cadre should not be made the subject matter of debate too often
We have therefore to consider the claim of the appellant keeping these aspects in view and referring to the conclusions reached in Janard hana s case
At p 625 of the Report this Court came to the conclusion In our opinion there was no justification for redrawing the seniority list affecting persons recruited or promoted prior to 1969 when the rules acquired statutory character
Therefore the 1974 seniority list is liable to be quashed and the two 1963 and 1967 sen iority lists must hold the field
 The District Judge in appeal in paragraph 10 of his judgment came to find that the appellant s placement was raised from serial 483 to 89
The High Court in its judgment has indi cated Shri Sharma went up in appeal but the same was dismissed by the learned District Judge
He affirmed the findings of the trial Judge on issues 1 and 3
He also held that the suit of the appellant was barred by limitation
During the pendency of appellant s appeal before the District Judge Bachan Singh s case had been decided by the Supreme Court and as a conse quence thereof his seniority was changed from St No 483 in 1967 seniority list to Sr No 89
So he got the main relief
His claim remained only for his reconsideration for promotion on the basis of his new ranking on the seniority list 772 The High Court has again indicated Pursuant to the judgment in Bachan Singh s case fresh Seniority list was prepared in 1974 in which the appellant s name figured at St No 89 instead of 483
This list was challenged by A Janardhan
His appeal was allowed and the said list was quashed
It was further held that there is nothing to suggest that 1963 and 1967 seniority lists were provi sional or were likely to be re drawn
There fore till the 1949 Rules acquired statutory character in 1969 the seniority lists of 1963 and 1967 in respect of Assistant Executive Engineers were quite legal and valid and were drawn upon the basis on the principle which satisfies the test Article 16 
So the senior ity lists of 1963 and 1967 were upheld
The grievance of the appellant stands disposed of by this judgment to which he was a party
 As we have already pointed out appellant was not a party in Janardhana s case inasmuch as no notice was taken to him and the case was disposed of without affording an opportunity to him of being heard
The plea of limitation raised by the respondents should not have been upheld in the facts of the case
As already indicated the seniority list was being changed from time to time
The appellant has represented against the 1967 senior ity list
The dispute was already pending before this Court in Bachan Singh s case
In fact without waiting for the judgment of this Court in Bachan Singh s case the plaintiff came to Court on 223
The appellant was entitled to make a representation against the seniority list and rejec tion of the representation actually would have given him the cause of action
In these circumstances non suiting himon the plea of limitation would not at all be justified
We therefore do not accept the conclusion of the High Court that plaintiffs action was barred by limitation
We take it that when this Court in Janardhana s case held on the facts placed before it that there was no justi fication made out for redrawing the seniority list affecting persons recruited or promoted prior to 1969  it meant a total topsy turvying of the list
Individual claims if any could not have been barred from consideration if by the time Janardhana s case came to be disposed of claims were pend ing adjudication before the Court
Appellant s case was already before the 773 High Court by the time Janardhana s appeal was disposed of by this Court
The appellant was certainly entitled to be treated as a recruit of 1960 and to be placed above the recruits of 1961
The stand taken before this Court in the counter affidavit filed by respondent No 1 that it was open to him to appear in the competitive examination in the succeeding year that is in the year 1961 to better his position is no justification for depriving him of his legit imate claim to a higher placement in the seniority in the cadre
While we affirm the view in Janardhana s case that the seniority list should not be disturbed the appellant s claim has also to be accommodated
In these circumstances we direct that the appellant s position shall be shown below the recruits of 1960 and above those of 1961 and he may be bracketed with one who has been assigned that position and an appropriate rectification shall be made in the seniority list of 1967 on the basis of the placement in terms of this judgment
His entitlement to promotion on the basis of such position shall be considered by the respondents within four months hence
The appellant shall be entitled to his costs throughout
Hearing fee is assessed at Rs2000
GN Appeal allowed


Summary:
The appellant Company took a fiat No 84 Mehr Dad Cuffe Parade Bombay from its owner Mehdi Mandil on leave and licence basis for the residence of its Officers Employ ees 
The first Respondent Divisional Manager of the Compa ny at Bombay acted as power of attorney of the Company and executed the agreement with the land lord for leave and licence initially for a period of 11 months renewable for a total period of 66 months
The agreement also provided for an advance payment of Compensation amounting to Rs 16500 monthly compensation of Rs 1500 and a deposit of Rs350000 to be returned at the end of the licence period free of interest
The company complied with all the terms of the agreement
On 11180 the appellant Company allowed the first Respondent to occupy the flat as company s employee
Three years later ie on 23384 the first Respondent filed a suit in the Court of Small Causes Bombay against the Company and the owner of the flat for a declaration that he was the actual licencee of the flat and for a permanent injunction to restrain the defendants from interfering with his posses sion of the flat
He based his claim as a licencee on the basis of two letters dated 25184 and 1284 written by the Manager of the Company one Mr Jain
Three days after filing the said suit first Respondent resigned and his letter of resignation was accepted by the company on 27384
Since the first Respondent ex employee of the company did not vacate the flat the company filed a complaint against him under Section 630 of the Companies Act before the_ Addl
Chief Metropolitan Magistrate Bombay
The Com plaint was filed by Mr Atul Mathur as attorney of the company who by then had taken over the place vacated by the first respondent
751 The trial Magistrate found the first respondent guilty under Section 630 of the Company s Act and sentenced him to pay a fine of Rs 1000 and directed to deliver vacant possession of the fiat to the company
In lieu of payment of fine aforesaid first respondent was directed to undergo simple imprisonment for 3 months
The first respondent preferred an appeal to the Session Court against the order of the Trial Magistrate
By his order dated 221086 the Addl
Sessions Judge Greater Bombay dismissed the appeal
Thus both the trial court as also the first appellate Court concurrently found that the company was the real licencee
Thereupon the first Respondent filed a Petition under Article 227 of the Constitution before the High Court which later he was permitted to convert as one under Sec
482 of the code of criminal procedure
The first Respondent con tended before the High Court i That the complaint was not properly filed inasmuch as the complainant was not duly authorised by the company which irregularity vitiated the proceedings ii That the Addl
Chief Judl
Magistrate had no jurisdiction to adjudi cate such a complicated matter in summary proceedings under Section 630 of the Companies Act and iii The Addl
Ses sions Judge had wrongly cast the burden of proof on the accused
The High Court rejected the contentions 1 and 3 and came to the conclusion that the letters written by Mr Jain afforded basis for the first respondent to bona fide dispute the company s claim for possession of the flat
The High Court also took the view that the first respondent having filed civil suit earlier in point of time the Criminal Court ought to have stayed its hand and allowed the Civil Court to adjudicate upon the issue
Damodar Das Jain vs Krishna Charan Chakraborti  Anr 1985 57 Com
Cases
Aggrieved by the High Court s order allowing the first Respondent s Writ Petition the company has filed this appeal by special leave and the question that fails for determination by the Court is whether the High Court was right in reversing the Judgments of the Courts below in a matter arising under Section 630 of the company s Act in exercise of its powers under section 482 Cr
Allowing the appeal and granting time to the first Respond ent till 752 30989 to vacate the flat in question this Court HELD The term Officer or Employee m Section 630 of the Company s Act applies not only to existing officers or employees but also to past employees or officers if such officer or employee either wrongfully obtains possession of any property or having obtained the possession during his employment withholds the same after the termination of his employment
Baldev Krishna Sahi vs Shipping Corpn
of India Ltd 1987 IV SCC 361 and Amrit Lal Chum vs
Devo Prasad Dutta Roy  758C Merely because the first respondent had schemingly filed a suit before tendering his resignation it can never he said that the Civil Court was in seisin of a bona fide dispute between the parties and as such the Criminal Court should have stayed its hands when the company filed a com plaint under Section 630
If a view is mechanically taken that whenever a suit has been flied before a complaint is laid under Section 630 the Criminal Court should not pro ceed with the complaint it would not only lead to miscar riage of justice but also render ineffective the salutory provisions of Section 630
763E F What has to he seen in a complaint under Section 630 is whether there is no dispute or no bona fide dispute re garding a property claimed by the company between the compa ny and its employee or ex employees
It is needless to say that every dispute would not become a bona fide dispute merely because the company s claim to possession is refuted by an employee or ex employee of the company
As to when a dispute would amount to a bona fide dispute would depend upon the facts of each case
764E The Court set aside the judgment of the High Court and restored those of the Additional Chief Metropolitan Magis trate and the Addl
Sessions Judge
766C Damodardas vs Krishna Charan Chakraborti  Anr 1988 4 Judgment Today p 714
and Ballavdas Agarwala vs Shri JC Chakravarty   referred to