Udal Singh vs New Delhi Municipal Corporation ...
1998 Latest Caselaw 839 Del

JUDGMENT

Vijender Jain, J.

1. I have heard the arguments advanced by the learned counsel appearing for both the parties at length.

2. Briefly stating the facts of the case is that pursuant to the first charge sheet, which was served upon the petitioner by the respondents on 17.8.1978, the petitioner was dismissed from service. That action of the respondents was assailed

by the petitioner by instituting a suit for permanent injunction seeking permanent injunction against the respondents restraining the respondent-New Delhi Municipal Committee (in short 'NDMC') from acting upon the resolution of dismissing the petitioner. The said suit was decreed in favour of the an appeal. Not only that the appeal was not preferred by the respondent but respondents on 18.5.1982 passed a resolution giving effect to the judgment passed by the Court in favour of the petitioner thereby closing the case against the petitioner. Thereafter the petitioner was again taken back into service, in the year 1983 petitioner crossed the efficiency bar. Petitioner sought voluntarily retirement in the year 1987, which was refused by the respondent, however, in 1989 the petitioner was allowed to retire from the service after the petitioner filed the Civil Writ Petition No. 747/1988. It is the ease of the petitioner that when the petitioner went to serve notice in the said petition, the impugned charge sheet dated 2.5.1988 was served upon the petitioner.

3. Mr. Sanjay Dua, learned counsel appearing for the petitioner, has contended that in view of the first charge sheet having been declared inoperative in view of the judgment of the Court and in view of the fact that the respondent-NDMC on its own has passed a resolution closing the case against the petitioner on the basis of the first charge sheet, the issuance of second charge sheet on the basis of same article of charges was illegal It is not disputed by the respondents that the second charge sheet was identical as was the first charge sheet.

4. In para-15 of the writ petition, the petitioner has averred, in the following terms "That from the perusal of the two charge sheets dated 17th August, 1978 and 2nd May, 1988 it is apparent that they are identical charges in substance, spirit and even the order of dismissal passed on the said charge sheet, have been set aside by the court and the said decision was duly accepted by the Committee as back as in 1982. Both the aforementioned charge sheets are annexed hereto this writ petition as Annexure-VII & Annexure-VIII, respectively."

5. Counter affidavit to the writ petition has been filed by the respondents. This is what the respondents have stated in the counter affidavit | -

"Para 15 is admitted that the charges levelled in 1988 are identical to those levelled in 1978."

6. In view of the specific admission of the respondents, it does not stand to reason as to how and on what basis respondents were justified in issuing the second charge sheet in 1988 on the basis of the first charge sheet which has been the subject matter of judicial scrutiny and in view of the fact that respondents themselves have passed the resolution dropping charges and closing the case against petitioner.

7. Mr. S.S. Gautam, learned counsel for the respondents, has vehemently contended that the second charge sheet was issued on account of the fact that the suit, which was decreed in favour of the petitioner, was decided in favour of the petitioner on technical ground. He has further contended that a communication was received from the Central Vigilance Commission that the case has not been disposed of on

merits and, therefore, the second charge sheet on the basis of the first charge sheet was issued to the petitioner.

8. To my mind, the whole approach of the respondents is erroneous. Firstly, when the suit was decreed in favour of the petitioner, respondents ought to have taken, steps, if they were aggrieved, to challenge it by way of filing an appeal to the superior court. Having reconciled to the passing of the decree against them, not only that the respondents did not prefer an appeal before a superior court but also passed a resolution on 18.6.1982 to the following terms | -

"Resolved by the Committee of Officers and decided by the Administrator that the Committee's earlier Resolution No. 24 dated 21.9.1979 is rescinded and the case is closed."

{Respondent-NDMC vide its resolution dated 21.9.1979 had approved the dismissal of the petitioner.}

9. Secondly, the first charge sheet contained charges against the petitioner covering the period from 1967 to 1973. How can respondents be allowed to proceed against the petitioner on the basis of the same very charges for which they themselves had closed the case against the petitioner and certainly not after a lapse of approximately 20 years. Even otherwise, petitioner has retired in the year 1989.

10. In view of the above discussion, I allow the writ petition and quash the order dated 2.5.1.988. Rule is made absolute.

11. There will be no order as to costs.