Delhi High Court
Rajesh Kumar vs Director General (Bsf) & Ors. on 16 November, 2009
Author: Pradeep Nandrajog
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 16.11.2009
+ W.P.(C) NO. 9449/2009
RAJESH KUMAR ..... Petitioner
Through: Ms.Lily Thomas, Advocate.
versus
DIRECTOR GENERAL (BSF) & ORS. ..... Respondents
Through: Mr.Pankaj Batra, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported in the
Digest? No.
PRADEEP NANDRAJOG, J. (ORAL)
1. Petitioner Rajesh Kumar is aggrieved by the fact
that a penalty of removal from service with pensionary benefits
has been inflicted upon him. He desires that the respondents
be directed to treat him as having voluntarily retired and
pension be paid to him accordingly.
2. As we understand, the difference in the two
situations i.e. the petitioner being treated as removed from
service with benefit of pension vis-à-vis he being treated as
voluntarily retired with benefit of pension would entail a
difference in the pension payable.
3. If treated as removed from service, the pension
payable is 2/3rd vis-à-vis the pension which he would receive if
he is treated as having voluntarily retired.
4. Prayer made in the petition is to quash the order
dated 18.08.2005 directing that being guilty of desertion, the
petitioner be removed from service with pensionary benefits.
Further prayer made is that it be treated that pursuant to the
application dated 01.11.2002, the petitioner be treated as
voluntarily retired and pension be paid according to the rules
applicable.
5. As per counter-affidavit filed, the writ petitioner is
indulging in voyagerism, in that, he had earlier on filed a WP(C)
No.4122/2008 which was dismissed vide order dated
28.05.2008.
6. While dismissing the writ petition, it was noted that
the petitioner had not challenged the order dated 18.08.2005
under which, on account of unauthorized absence, he was
removed from service with pensionary benefits.
7. We note that the petitioner submitted an application
seeking voluntary retirement on 01.11.2002, which if accepted,
would have resulted in cessation of service w.e.f.01.02.2003.
8. The said application was never accepted by the
respondents and inspite thereof the petitioner chose to absent
himself from duty with the result the penalty of dismissal from
service was passed against him. On an application dated
30.05.2005 being filed, on humanitarian ground, the order of
dismissal was converted to an order of removal from service
with pensionary benefits as applicable.
9. It may be noted that the instant petition has been
filed in the name of Rajesh Kumar through his wife.
10. Reason why wife of the petitioner is suing as his
next friend is that the petitioner, as per the wife, is suffering
from Schizophrenia.
11. Learned counsel for the petitioner could not
overcome a basic objection as to why, inspite of the application
seeking voluntary retirement not being accepted, did the
petitioner abscond and not report for duty.
12. It is settled law that mere filing of an application
seeking voluntary retirement is meaningless unless the same is
accepted by the competent authority.
13. It appears that the petitioner is Schizophrenic and
off and on does crazy things.
14. Under these circumstances, his wife, who is
prosecuting the instant petition, could have followed-up the
matter with the authorities concerned.
15. There are further problems which have to be
overcome by the petitioner. The first is the bar of constructive
res judicata.
16. It is settled law that with respect to a cause of
action and a challenge to an alleged wrong, all pleas available,
as per law, have to be urged when suit or writ petition is filed
and having not so done, a second petition on the same cause
with fresh pleadings would be barred on the principles of
constructive res judicata.
17. It is in this connection that the filing of the earlier
writ petition and its dismissal assumes significance.
18. The record of the said writ petition shows that
inspite of an objection taken that the petitioner had not
challenged the order dated 18.08.2005, the petitioner took no
steps to amend the writ petition filed by him and preferred to
argue the same. The said writ petition was dismissed.
19. Claim in the writ petition was predicated on the
strength of the voluntarily retirement application dated
01.11.2002 i.e. the foundation of the cause in the earlier
petition was the same as the instant petition.
20. Relief prayed in the said writ petition was to declare
the petitioner as having voluntarily retired and consequently
the payment of pension as per the rules applicable pertaining
to the employees of the respondents who are voluntarily
retired.
21. Thus, looking at the various hurdles in the way of
the petitioner, we are left with no option but to dismiss the
instant writ petition.
22. The writ petition is dismissed.
23. No costs.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
NOVEMBER 16, 2009
sb
