IN THE HIGH COURT OF DELHI AT NEW DELHI

 

SUBJECT : SETTING ASIDE OF THE ORDER

 

CIVIL WRIT NO. 7008 of  2003

 

Date of Decision :   12th May, 2006.

 

GURBAKSH SINGH         ....                          Petitioner.

                                                   Through        Mr. V. Shekhar with Ms. Jaya Bhargava &

Mr. Sunil Upadhyaya,  Advocates.

 

                              VERSUS

THE G.M.,WESTERN RAILWAY & ORS.   .... Respondents

                                                  Through        Mr. Altemesh Rein, Advocate.

                                                                   

        

SANJIV KHANNA, J:

 

1.      By way of present writ petition Mr. Gurbaksh Singh, the petitioner has challenged and prayed for setting aside of orders passed by the learned Central Administrative Tribunal  dated 21st July, 1997. In the writ petition the following prayers have been made:- 

"(i)Issue appropriate writ in the nature of certiorari and set -aside the impugned order of the Central Administrative Tribunal dated 27th May, 2003 by which the R.A. No. 150/2002 was dismissed and other preceding the said order.

 

(ii)Pass appropriate writ in the nature of mandamus and call upon the respondents to produce the record and thereafter quash the order of removal of the petitioner dated 21st July, 1997 with all consequential relief.

 

(iii)Pass any other order or orders by this Hon'ble Court deem fit and proper."?

 

2.      The petitioner was working as Electric Fitter Grade-I at Delhi junction.  By order dated 18th July, 1988 he was transferred to Achhnera, Uttar Pradesh.  This order of transfer was made subject matter of challenge before the Central Administrative Tribunal by the petitioner but was not successful.  He also approached the Supreme Court by way of Special Leave Petition but did not succeed. 

 

3.      Subsequently, vide charge sheet dated 7th March, 1990 departmental proceedings were initiated against the petitioner for unauthorised absence from 20th July, 1988 to 27th March, 1990.  By order dated 4th September, 1991 after enquiry, penalty of reversion from Electric Fitter Grade-I to Electric Fitter Grade-II was imposed.  This order of reversion was accepted by the petitioner and has become final. 

 

4.      In spite of the above penalty order, as per the respondents, the petitioner did not report and join duty and consequently a second charge sheet dated 2nd December, 1993 was issued on the ground of unauthorised absence from 8th March, 1990 to 2nd December, 1993.  An enquiry was held, but the petitioner did not participate in the said enquiry.  The disciplinary authority after considering the material on record imposed major penalty of removal from service by an order dated 21st July, 1991. 

 

5.      The petitioner filed an appeal against order but was not successful.  He then approached the Tribunal by way of OA No. 2535/1998.

 

6.      Learned Tribunal by  order dated 20th October, 2000 dismissed the said original application.  The main contention argued before the Tribunal by the petitioner was that double punishment had been imposed in view of the two punishment orders passed by the disciplinary authority for unauthorised absence.  The first order it was submitted resulted in reversion and the second order resulted in the penalty of removal from service.  The contention of the petitioner that the first order of punishment of reversion related to unauthorised absence from 20th July, 1988 to 22nd March, 1991 and the subsequent order removing him from service related to absence from 7th March, 1990 onwards, was found to be incorrect.  It was held that the first charge sheet was served on 7th March, 1990 and related to the period of unauthorised absence upto the said date.  The plea of double jeopardy was accordingly rejected by the learned Tribunal. 

 

7.      The Tribunal also considered the other argument raised by the petitioner that he never refused to accept the transfer order and  inspite of repeated representations he was not permitted and allowed to join duty.  This contention of the petitioner was found to  be without any substance.  It was also found that the contention of the petitioner that he was not paid substance allowance was without merit.  The Tribunal categorically held that the petitioner right from 1988 -1994 was deliberately not abiding by the transfer order and his conduct showed that he was not interested in continuing in service. 

 

8.      The petitioner challenged this order of the Tribunal dated 20th October, 2000 upholding the order of removal from service by filing Civil Writ No. 3/2002 in this Court.  This writ petition was dismissed vide order dated 26th February, 2002,  which reads as under:-

"Having heard the learned counsel for the petitioner, we are of the opinion keeping in view the facts and circumstances of the case and particularly in view of the fact that the petitioner did not participate in the enquiry, we feel that no case has been made out for interference with the impugned judgment.  Learned counsel for the petitioner then states that he may be permitted to file an application for review.  If it is permissible in law, he may do so.  The writ petition stands dismissed."?

 

9.      The petitioner thereafter approached the Tribunal by way of an application under Section 22 of the Administrative Tribunal's Act, 1985 and Rule 17 of the Central Administrative Tribunal(Procedure) Rules, 1987.  In this application again the plea of double jeopardy was taken and it was stated that the second charge sheet related to same period for unauthorised absence for which penalty of reversion had been earlier imposed.  It was also contended in the application that the learned Tribunal had failed to take into consideration several representations made by the petitioner and that the petitioner had never refused to join duty and that these aspects were not understood and considered while dismissing the original application by order dated 20th October, 2000.  This review application was dismissed by the learned Tribunal on 27th May, 2003 on the ground that no good ground for review was  made out. 

 

10.    After dismissal of the review application, the petitioner has now  again approached this Court by way of the present writ petition with the prayers that  have been reproduced above.

 

11.    Learned counsel for the petitioner submitted before us that the second chargesheet dated 2.12.1993 and the enquiry report referred to unauthorised absence of the petitioner w.e.f. 20.7.1988 to 7.3.1993 for which earlier a separate enquiry was held and the petitioner was punished by reversion from rank of Electric Fitter Grade-I to Electric Fitter Grade-II. It was submitted by the learned counsel for the petitioner that the petitioner was being punished again and thus it was a case of double jeopardy and punishment. It  was further submitted that there was no application of mind by the disciplinary and appellate authorities including the tribunal. The counsel for the petitioner relied  upon representations and submitted that the findings of the enquiry officer were perverse. Lastly, it was submitted that the petitioner had unblemished service record of nearly 29 years of service from 1958 till 20.7.1988 but as a result of the punishment of removal from service he was not entitled to any pensionary and retirement benefits. He  relied upon the judgment of the Supreme Court in the case of Laxmi Shankar Pandey vs. Union of India & Ors. reported in (1991) 2 SCC 488  as well unreported order passed by this court  in  Harish Chander Vs. Union India (CW No. 1730/1999) and another judgment of this court in Constable Dayachand   vs. Union of India & Ors. reported in 2000 (1) Administrative Total Judgments 137.

 

12.    The counsel for the respondent on the other hand submitted that the petitioner deliberately and intentionally remained absent unauthorisedly and the order passed by the Tribunal was upheld by this court while dismissing CW No. 3/2002 vide order dated 26.2.2002. The petitioner cannot therefore question and agitate correctness of  the order dated 28.10.2000 passed by the leaned Tribunal once again.

 

13.    We have considered the submissions made by the parties. The order of the Tribunal dated 20th October, 2000 passed in OA 2535/1998 was  made the subject matter of the challenge in writ petition No. 3/2002. The said writ petition was dismissed vide order dated 26th February, 2002, which  has been quoted above. Learned Tribunal in its order dated 20th October, 2000 had examined all the contentions of the petitioner including the plea of double jeopardy but did not find any merit in the said contentions. It was found that there were two separate enquiries.  The first enquiry was for unauthorised absence from 20.7.1988 to 7.3.1990 and that had resulted in penalty of reversion of the petitioner from the post of Electric Fitter Grade-I to Electric Fitter Grade-II vide order dated 4.9.1991. The second chargesheet was in respect of unauthorised absence of the petitioner from 8.3.1990 upto 2.12.1993 and that had resulted in passing of order of major penalty of removal from service. It may also be noted that the petitioner had failed to join the duty even as late as 20.7.1997, when the said penalty order was passed.

 

14.    The petitioner cannot now question and challenge the order of the Tribunal dated 20th October, 2000 once again. He had earlier filed Writ Petition No. 3/2002 and that writ petition was dismissed.  It is well settled that the principles of res judicata apply to  writ petitions under Article 226 of the Constitution of India. It is immaterial whether any notice was issued to the respondents or whether the writ petition was dismissed at preliminary hearing itself.   Reference in this regard may be made to K Vidyasagar vs. State of U.P. Reported in (2005) 5 SCC 581, Avinash Nagra vs. Navodaya Vidyalaya Samiti (1997) 2 SCC 534 and Amalgamated Coal Fields vs. Janapada Sabha AIR 1964 SC 1013. In the case of Gulabchand Chhotala Parikh vs. State of Gujrat AIR 1965 SC 1153 it has been held by the  Supreme Court that the decision given by the High Court on merits would operate as res judicata.  The relevant and operative portion of the said judgment is reproduced below:

" 1.  If a petition under Article 226  is considered on the merits as a contested matter and is dismissed, the decision would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the constitution.

2.It would not be open to a party to ignore the said judgment and move this court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs.

3.  It the petition under Article 226 in a High Court is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32.

4.  Such a dismissal may however constitute a bar to a subsequent application under Article 32 where and if the facts thus found by the High Court be themselves relevant even under Article 32.

5.  If a writ petition is dismissed in limine and an order is pronounced in the behalf, whether or not the dismissal would constitute a bar would depend on the nature of the order. If the order is on the merits, it would be a bar.

6.  If  the petition is dismissed in limine  without a speaking order,  such dismissal cannot be treated as creating a bar of res judicata.

7.  If the petition is dismissed as withdrawn, it cannot be a bar to a subsequent petition under Article32 because, in such a case, there had been no decision on the merits by the court."?

 

15.    It is also well settled that the principle of res judicata is not a rule of mere technicality but based on the principle that seeks to bring to an end to litigation by giving finality to a judgment interse parties and it also save a litigant from harassment for a second time. In the case of Avinash Nagra (supra) it was held that if a writ petition was  withdrawn without liberty to file a second writ petition, the second writ petition was not maintainable. Reference in this regard may also be made to  Sarguja Transport Service vs. S.T.R.C. (1987) 1 SCC 5 where it was held that on the ground of public policy the principle underlining Order XXIII Rule 1 of the Code of Civil Procedure, 1908, would be applicable to writ  petitions under Article 226 of the Constitution of India, subject to certain limitations. Situation may be different where a writ petition is withdrawn to pursue a more efficacious alternative remedy. In such cases there is no adjudication on merits.  The principles as embodied in Order XXIII Rule 1 of the Code of Civil Procedure, 1908 may not  therefore strictly  be applicable in such cases (See Haryana State Cooperative Land Development Bank vs. Neelam (2005) 5 SCC 91).

 

16.    A bare perusal of the order dated 26.2.2002 shows that while dismissing the writ petition No. 3/2002, the court  had examined and considered the order passed by the Tribunal dated 20th October, 2000 on merits but did not find any reason to interfere with the impugned order. It is not a case in which the parties were relegated  to approach an alternative forum. The last part of the order dated 26.2.2002 merely records the submission of the counsel that the petitioner wanted to file a review application. This court merely recorded that if a review application was permissible in law, the same may be filed. It is also well settled that power of this court under Article 226 of the Constitution of India and power of review with the Tribunal are different and separate. The two powers are distinct. The Tribunal after deciding and adjudicating a review application cannot re-examine or recall its earlier order in entirety but has limited power of review as specified in Section 22(iiif) of the Administrative Tribunal Act, 1985 (See in this regard Gupabandhu Bidwar vs. Krishan Chandra Mohanty (1998)4 SCC 447).Power of review granted to a Tribunal is similar to the powers of a civil court under Order 47 of the Code of Civil Procedure, 1908.   In the case of Ajit Kumar Rath vs. State of Orissa (1997) SCC 473 was held as under:

         " The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114  read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was  not within his  knowledge or could not be produced by him at the time when the order was  made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier. That is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression "any other sufficient reason"? used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule.

 

 

31.  Any others attempt, except  an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment"?.

 

 

 

17.    In view of the above legal position, no fault can be found in the order of   the Tribunal dated 27th May, 2003 dismissing the review application filed by the petitioner.

 

18.    It appears that the petitioner had unblemished service record till 1988, when he unauthorised absented himself from duty. He had worked for more than 29 years. Learned counsel  for the petitioner had drawn our attention to the order dated 27th September, 2002 in which reference has been made to Rule 65 of the Railway Service Pension Rules, 1993 for grant of compassionate allowance. We are not expressing any opinion on this respect as this question was not considered and was not subject matter of the petition before the Tribunal or this writ petition.   It will be open to the petitioner to make representation under Rule 65 of the aforesaid rules. It goes without saying that if any representation is made by the petitioner,  the respondents will decide the same in accordance with law.

 

19.    In view of the above, we do not find any merit in the writ petition and the same is dismissed. There will be no order as to costs.

 

 

                                                           Sd/-                                                                                                

(SANJIV KHANNA)

                                                           JUDGE

 

 

                                                                       Sd/-

                                                  (DR. MUKUNDAKAM SHARMA)

                                                                        JUDGE