Delhi High Court
Idpl Vrs & Retired Employees ... vs The Secretary, Government Of ... on 19 April, 2010
Author: Kailash Gambhir
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 12665/2009
Judgment reserved on 08.02.2010
% Judgment delivered on: 19.04.2010
IDPL VRS & Retired Employees Federation Gurgaon ...... Petitioner
Through: Mr. S.K. Sinha with Ms. Seema
Kashyap, Advocates
versus
The Secretary, Government of India & Ors. ..... Respondents
Through: Mr. J.P. Singh, Advs. for R-1 & 2.
Mr. Manish Vashisht with
Mr. Sameer Vashisht and Ms. Shakti
Yadav, Advocate for R-3.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J.
1. By this petition filed under Article 226 of the Constitution
of India, the petitioners seek directions to direct the respondent to
appoint the petitioners to the posts which they were holding on the
date of VRS by way of fresh recruitment.
2. Brief facts relevant for deciding the present petition are
that the petitioners' no. 2 to 329 were employees of the Indian Drugs
& Pharmaceuticals Company (IDPL) and on 31.12.2002 opted for VRS
which was offered by the IDPL. But subsequently, the company was
rehabilitated and revived and hence fresh recruitments were made on
contract basis. The case of the petitioners is that they have a
preferential right of being recruited once the company is making fresh
recruitments. Feeling aggrieved with the same, the petitioners
preferred a writ petition under Article 32 of the Constitution of India
and vide order dated 18.9.2009 the same was "dismissed as
withdrawn". Without obtaining leave for filing a fresh petition from
the Supreme Court, the petitioners have now approached this court
by filing a writ petition under Article 226 of the Constitution of India
on the same cause of action.
3. Mr. Manish Vasisht, counsel for respondent No. 3
strenuously contended that the present writ petition filed by the
petitioners is not maintainable in the eyes of law as the petitioners
had earlier filed a Writ Petition (Civil) No. 403/2009 under Article 32
of the Constitution of India and the said writ petition was dismissed as
withdrawn by the Apex Court vide order dated 18.9.2009 and no
liberty or leave was obtained by the petitioner to approach this Court
under Article 226 of the Constitution of India. The contention of
counsel for the respondent was that the said unconditional withdrawal
by the petitioners without taking any leave of the Court would clearly
show that the petitioners had no case before the Apex Court and due
to this reason alone the petitioners had withdrawn the said writ
petition and hence now based on the same facts and the cause of
action, the present writ petition under Article 226 of the Constitution
cannot be held to be maintainable. In support of his arguments,
counsel for the respondent placed reliance on the following
judgments:
1. Sarguja Transport Service Vs. State Transport Appellate
Tribunal, M.P., Gwalior & Ors. (1987) 1 SCC 5,
2. Upadhyay & Co. Vs. State of U.P. & Ors. (1999) 1 SCC 81
3. Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian
Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408.
4. The other contention raised by counsel for respondent No.
3 was that the petitioners have no legally enforceable right to invoke
the jurisdiction of this Court under Article 226 of the Constitution of
India. Counsel argued that the petitioners along with other large
number of employees had voluntarily accepted the VRS scheme when
the decision was taken by the Government to close the respondent
No.3 company and pursuant to the said decision, an option was given
to all 6000 odd employees to exercise their right to give their option
for the VRS, which remained open for a period of three months. It
was also made clear by the respondent No. 3 that in case such option
is not given by the employees then they will not be entitled to the VRS
in future and will be considered only for retrenchment compensation,
if any. The contention of counsel for the respondent No.3 was that
pursuant to the said scheme announced in the year 2002, the
petitioners had voluntarily exercised their option and as a result
thereof they had received all the monetary benefits under the scheme
and now after a lapse of about 7 years the petitioners, without there
being any legal right created in the said scheme, cannot approach this
Court under Article 226 of the Constitution of India. Counsel further
submitted that the relationship of employer and employee ceased to
exist once the VRS option was exercised by the petitioners, which was
accepted by respondent No.3 and resultantly pecuniary benefits were
given to the petitioners. Counsel contended that the said scheme was
in the nature of a contract between the parties and it is not the case
of the petitioners that any kind of fraud was played upon them to
seek their said option. Counsel also submitted that around 6000
employees had exercised their option and pursuant to the directions
given by the BIFR, the respondent had merely employed about 97
employees on contract basis and the total strength of respondent No.3
at present is 322. Counsel thus submitted that under the VRS scheme
no such condition was laid down that in the event of revival of the said
company, a fresh right would accrue to the employees to seek revival
of their option and in the absence of any such clause in the VRS
scheme, clearly the petitioners have no enforceable right to claim
recruitment in the service. Counsel further submitted that no
reappointment of any person, who had earlier exercised their option
under VRS, has been made by respondent No.3. He, however, stated
that some of the persons have been taken on contract basis for a
short period. The counsel thus stated that the present petition filed
by the petitioners is a gross abuse of the process of Court of law.
5. Counsel for the petitioners on the other hand submitted
that the petition filed by the petitioners under Article 32 was
withdrawn by the petitioners so as to seek appropriate legal remedy
available to the petitioners under Article 226 of the Constitution of
India and that the present petition is not hit by the principle of res
judicata. Counsel further submitted that Clause 9 of the said VRS
scheme clearly states that there will be no recruitment against the
vacancies arising due to VRS. Similarly in Clause 2 of the scheme,
placed on page 53 of the paper book, it was made explicitly clear to
the employees that there shall be no recruitment against vacancies
arising out of VRS. Counsel for the petitioners submitted that the
petitioners were led to believe by respondent No. 3 that no further
recruitment against the same vacancies shall be made by respondent
No. 3 and under that belief the petitioners exercised their option to
seek voluntary retirement. Counsel thus urged that now once
respondent No.3 is on the revival mode, then, necessarily the present
petitioners who have been deprived of their employment under the
said scheme should be taken back on employment and respondent No.
3 cannot be allowed to recruit persons either on contract basis or
otherwise. Counsel further submitted that all the petitioners are
willing to return the VRS compensation already received by them
from respondent No. 3 in terms of Clause 3 of the said revised
voluntary retirement scheme announced by the Government vide their
circular No. IDP/4(52)/Estt/02 dated 20.09.2002. Counsel further
urged that once respondent No. 3 has started making fresh
recruitments, then the petitioners have a preferential right to be
given employment on the posts they were earlier holding.
6. I have heard learned counsel for the parties at
considerable length and given my anxious consideration to the
arguments advanced by them.
7. First, I would deal with the preliminary objection raised by
the counsel for the respondent that since no leave of the Apex Court
was taken by the petitioners at the time of withdrawing the petition
filed by them under Article 32 of the Constitution of India, therefore,
the present petition filed under Article 226 of the Constitution of India
based on the same facts and same cause of action would not be
maintainable. In support of his arguments the learned Counsel for
the petitioner placed reliance on the judgments of the Apex Court in
Sarguja Transport Service (Supra) and Upadhyay & Company
(Supra). One of the earlier cases where this question came under
consideration was the case of Daryao Singh Vs. State of U.P. &
Ors. (1962) 1 SCR 574 where the Court was confronted with the
question as to whether the dismissal of writ petitions filed by a party
under Article 226 of the Constitution of India would create a bar of
res judicata against a similar petition filed by the same party under
Article 32 of the Constitution of India. Answering the said question
the Apex Court held as under:-
"The next question to consider is whether it makes any
difference to the application of this rule that the decision on
which the plea of res judicata is raised is a decision not of this
Court but of a High Court exercising its jurisdiction under Art.
226. The argument is that one of the essential requirements
of s. 11 of the Code of Civil Procedure is that the Court which
tries the first suit or proceeding should be competent to try
second suit or proceeding, and since the High Court cannot
entertain an application under Art. 32 its decision cannot be
treated as res judicata for the purpose of such a petition. It is
doubtful if the technical requirement prescribed by s. 11 as to
the competence of the first Court to try the subsequent suit is
an essential part of the general rule of res judicata; but
assuming that it is, in substance even the said test is satisfied
because the jurisdiction of the High Court in dealing with a
writ petition filed under Art. 226 is substantially the same as
the jurisdiction of this Court in entertaining an application
under Art. 32. The scope of the writs, orders or directions
which the High Court can issue in appropriate cases under
Art. 226 is concurrent with the scope of similar writs, orders
or directions which may be issued by this Court under Art. 32.
The cause of action for the two applications would be the
same. It is the assertion of the existence of a fundamental
right and its illegal contravention in both cases and the relief
claimed in both the cases is also of the same character.
Article 226 confers jurisdiction on the High Court to entertain
a suitable writ petition, whereas Art. 32 provides for moving
this Court for a similar writ petition for the same purpose.
Therefore, the argument that a petition under Art. 32 cannot
be entertained by a High Court under Art. 226 is without any
substance; and so the plea that the judgment of the High
Court cannot be treated as res judicata on the ground that it
cannot entertain a petition under Art. 32 must be rejected.
It is, however, necessary to add that in exercising its
jurisdiction under Art. 226 the High Court may sometimes
refuse to issue an appropriate writ or order on the ground
that the party applying for the writ is guilty of laches and in
that sense the issue of a high prerogative writ may
reasonably be treated as a matter of discretion. On the other
hand, the right granted to a citizen to move this Court by
appropriate proceedings under Art. 32(1) being itself a
fundamental right this Court ordinarily may have to issue an
appropriate writ or order provided it is shown that the
petitioner has a fundamental right which has been illegally or
unconstitutionally contravened. It is not unlikely that if a
petition is filed even under Art. 32 after a long lapse of time
considerations may arise whether rights in favour of third
parties which may have arisen in the meanwhile could be
allowed to be affected, and in such a case the effect of laches
on the part of the petitioner or of his acquiescence may have
to be considered; but, ordinarily if a petitioner makes out a
case for the issue of an appropriate writ or order he would be
entitled to have such a writ or order under Art. 32 and that
may be said to constitute a difference in the right conferred
on a citizen to move the High Court under Art. 226 as distinct
from the right conferred on him to move this Court. This
difference must inevitably mean that if the High Court has
refused to exercise its discretion on the ground of laches or
on the ground that the party has an efficacious alternative
remedy available to him then of course the decision of the
High Court cannot generally be pleaded in support of the bar
of res judicata. If, however, the matter has been considered
on the merits and the High Court has dismissed the petition
for a writ on the ground that no fundamental right is proved
or its breach is either not established or is shown to be
constitutionally justified there is no reason why the said
decision should not be treated as a bar against the
competence of a subsequent petition filed by the dame party
on the same facts and for the same reliefs under Art. 32.
There is one more argument which still remains to be
considered. It is urged that the remedies available to the
petitioners to move the High Court under Art. 226 and this
Court under Art. 32 are alternate remedies and so the
adoption of one remedy cannot bar the adoption of the other.
These remedies are not exclusive but are cumulative and so
no bar of res judicata can be pleaded when a party who has
filed a petition under Art. 226 seeks to invoke the jurisdiction
of this Court under Art. 32. In support of this contention
reliance has been placed on the decision of the Calcutta High
Court in Mussammat Gulab Koer v. Badshah Bahadur [13
C.W.N. 1197.]. In that case a party who had unsuccessfully
sought for the review of a consent order on the ground of
fraud brought a suit for a similar relief and was met by a plea
of res judicata. This plea was rejected by the Court on the
ground that the two remedies though co-existing were not
inconsistent so that when a party aggrieved has had recourse
first to one remedy it cannot be precluded from subsequently
taking recourse to the other. In fact the judgment shows that
the Court took the view that an application for review was in
the circumstances an inappropriate remedy and that the only
remedy available to the party was that of a suit. In dealing
with the question of res judicata the Court examined the
special features and conditions attaching to the application for
review, the provisions with regard to the finality of the orders
passed in such review proceedings and the limited nature of
the right to appeal provided against such orders. In the result
the Court held that the two remedies cannot be regarded as
parallel and equally efficacious and so no question of election
of remedies arose in those cases. We do not think that this
decision can be read as laying down a general proposition of
law that even in regard to alternate remedies if a party takes
recourse to one remedy and a contest arising therefrom is
tried by a court of competent jurisdiction and all points of
controversy are settled the intervention of the decision of the
Court would make no difference at all. In such a case the
point to consider always would be what is the nature of the
decision pronounced by a Court of competent jurisdiction and
what is its effect. Thus considered there can be no doubt that
if a writ petition filed by a party has been dismissed on the
merits by the High Court the judgment thus pronounced is
binding between the parties and it cannot be circumvented or
by-passed by his taking recourse to Art. 32 of the
Constitution. Therefore, we are not satisfied that the ground
of alternative remedies is well founded".
From the aforesaid judgment, it would be manifest that the Apex
Court was primarily dealing with a question as to whether the
second petition based on the same facts would be barred by the
principles of res judicata or not. The Court in a passing reference
also held that if the petition is dismissed as withdrawn, it cannot be a
bar to a subsequent petition under Article 32 because in such a case
there has been no decision on the merits of the case by the court.
While laying down this law, the court was conscious enough to clarify
that the conclusion reached by them was confined only to the point of
res judicata and in the light of this position the facts of those six
petitions were examined.
8. In the matter of Sarguja Transport Service (Supra ) the
Apex Court was dealing with a precise question that "where the
petitioner withdraws a petition filed by him under Article 226 of the
Constitution of India without seeking a permission to institute a fresh
petition, then in such a case will the remedy of the petitioner to file a
suit or a writ petition under Article 32 before the Supreme Court
remain open to him or not?" It would be apt to mention here that the
facts of the said case are more near and similar to the facts of the
case at hand as here also this court is dealing with an issue where the
petitioner had withdrawn the petition filed under Article 32 of the
Constitution of India and based on the same facts and the same cause
of action has filed this petition under Article 226 of the Constitution of
India. The Apex Court in the above case examined the principles of
public policy envisaged under Order 23 Rule (1) of the Code of Civil
Procedure and held as under :-
"The question for our consideration is whether it would or
would not advance the cause of justice if the principle
underlying Rule 1 of Order XXIII of the Code is adopted in
respect of writ petitions filed under Articles 226/227 of the
Constitution of India also. It is common knowledge that very
often after a writ petition is heard for some time when the
petitioner or his counsel finds that the Court is not likely to
pass an order admitting the petition, request is made by the
petitioner or by his counsel, to permit the petitioner to
withdraw from the writ petition without seeking permission to
institute a fresh writ petition. A Court which is unwilling to
admit the petition would not ordinarily grant liberty to file a
fresh petition while it may just agree to permit the withdrawal
of the petition. It is plain that when once a writ petition filed
in a High Court is withdrawn by the petitioner himself he is
precluded from filing an appeal against the order passed in
the writ petition because he cannot be considered as a party
aggrieved by the order passed by the High Court. He may as
stated in Daryao and Ors. v. The State of U.P. and Ors.
[1962] 2 S.C.R. 575 in a case involving the question of
enforcement of fundamental rights file a petition before the
Supreme Court under Article 32 of the Constitution of India
because in such a case there has been no decision on the
merits by the High Court. The relevant observation of this
Court in Daryao's case (supra) is to be found at page 593 and
it is as follows:
If the petition is dismissed as withdrawn it cannot be a bar to
a subsequent petition under Article 32, because in such a
case there has been no decision on the merits by the Court.
We wish to make it clear that the conclusions thus reached by
us are confined only to the point of res judicata which has
been argued as a preliminary issue in these writ petitions and
no other.
9. The point for consideration is whether a petitioner after
with-drawing a writ petition filed by him in the High Court
under Article 226 of the Constitution of India without the
permission to institute a fresh petition can file a fresh writ
petition in the High Court under that Article. On this point the
decision in Daryao's case (supra) is of no assistance. But we
are of the view that the principle underlying Rule 1 of Order
XXIII of the Code should be extended in the interests of
administration of justice to cases of withdrawal of writ petition
also, not on the ground of res judicata but on the ground of
public policy as explained above. It would also discourage the
litigant from indulging in bench-hunting tactics. In any event
there is no justifiable reason in such a case to permit a
petitioner to invoke the extraordinary jurisdiction of the High
Court under Article 226 of the Constitution once again. While
the withdrawal of a writ petition filed in a High Court without
permission to file a fresh writ petition may not bar other
remedies like a suit or a petition under Article 32 of the
Constitution of India since such withdrawal does not amount
to res judicata, the remedy under Article 226 of the
Constitution of India should be deemed to have been
abandoned by the petitioner in respect of the cause of action
relied on in the writ petition when he withdraws it without
such permission. In the instant case the High Court was right
in holding that a fresh writ petition was not maintainable
before it in respect of the same subject-matter since the
earlier writ petition had been withdrawn without permission to
file a fresh petition. We, however, make it clear that whatever
we have stated in this order may not be considered as being
applicable to a writ petition involving the personal liberty of
an individual in which the petitioner prays for the issue of a
writ in the nature of habeas corpus or seeks to enforce the
fundamental right guaranteed under Article 21 of the
Constitution since such a case stands on a different footing
altogether. We, however leave this question open."
It would be worth mentioning here that the judgment of the Apex
Court in Daryao Singh's case was referred in the above judgment
and the court clearly took a view that the decision in Daryao Singh's
case would be of no assistance as there the court was confronted with
the issue as to whether the second petition filed under Article 32 of
the Constitution of India would be barred by the principles of res
judicata. In that case the Apex Court did not go into the question of
principle of law and the public policy envisaged under Order 23 Rule
(1) of the CPC. The Apex Court in Sarguja Transport Service's
case also left the question open so far applicability of the said
principle in the writ petition involving the personal liberty of an
individual or where the writ in the nature of habeas corpus or also
where the petitioner seeks to enforce the fundamental rights granted
under Article 21 of the Constitution of India are concerned.
9. The said principle under Order 23 Rule (1) as extended to
the writ jurisdiction again came up for consideration in the case of
Upadhyay & Company (Supra) where the Apex Court again took a
view that withdrawal of a writ petition filed in the High Court without
permission to file a fresh writ petition may not bar other remedies
like a suit or a petition under Article 32 of the Constitution of India,
but the remedy under Article 226 of the Constitution of India should
be deemed to have been abandoned by the petitioner in respect of the
cause of action relied in the writ petition when he withdraws it
without such permission. Relevant para of the said judgment is
referred as under:-
The aforesaid ban for filing a fresh suit is based on public
policy. This Court has made the said rule of public polity
applicable to jurisdiction under Article 226 of the Constitution
(Sarguja Transport Service v. State Transport Appellate
Tribunal, Gwalior, : [1987]1SCR200 ). The reasoning for
adopting it in writ jurisdiction-is that very often, it happens,
when the petitioner or his counsel finds that the court is not
likely to pass an order admitting the writ petition after it is
heard for some time, that a request is made by the petitioner
or his counsel to permit him to withdraw it without seeking
permission to institute a fresh writ petition. A court which is
unwilling to admit the petition would not ordinarily grant
liberty to file a fresh petition while it may just agree to permit
withdrawal of the petition. When once a writ petition filed in a
High Court is withdrawn by the party concerned he is
precluded from filing an appeal against the order passed in
the writ petition because he cannot be considered as a party
aggrieved by the order passed by the High Court. If so, he
cannot file a fresh petition for the same cause once again.
The following observations of E.S. Venkataramiah, J. (as the
learned Chief Justice then was) are to be quoted here:
"We are of the view that the principle underlying
Rule 1 of Order 23 of the Code should be
extended in the interests of administration of
justice to cases of withdrawal of writ petition
also, not on the ground of res judicata but on the
ground of public policy as explained above. It
would also discourage the litigant from indulging
in bench-hunting tactics. In any event there is no
justifiable reason in such a case to permit a
petitioner to invoke the extraordinary jurisdiction
of the High Court under Article 226 of the
Constitution once again. While the withdrawal of
a writ petition filed in High Court without
permission to file a fresh writ petition may not
bar other remedies like a suit or a petition under
Article 32 of the Constitution since such
withdrawal does not amount to res judicata, the
remedy under Article 226 of the Constitution
should be deemed to have been abandoned by
the petitioner in respect of the cause of action
relied on in the writ petition when he withdraws it
without such permission."
10. Yet, in another case which is relevant to the controversy at
hand is that of Sarva Shramik Sanghatana (KV) Vs. State of
Maharashtra & Ors (2008) 1 SCC 494 where also the Apex Court
placed reliance on the principle enunciated in Sarguja Tranport's
case but since the facts of the case being dealt by them were
distinguishable as there the court was dealing with an application of
the petitioner company filed under Section 25-O (1) of the Industrial
Disputes Act which was withdrawn reserving its right to move fresh
application as and when necessary and hence in the background of
these facts the court found that the withdrawal by the petitioner for
trying to arrive at an amicable settlement with the workers was a
bona fide exercise on the part of the petitioner and it was not a case
of bench hunting, and therefore, held that the principle settled in
Sarguja Transport case to be distinguishable. It would be, however,
relevant to reproduce relevant para of the said judgment here :-
"We have carefully examined the decision of the Sarguja
Transport Service case (supra). In the said decision it is
mentioned in paragraph 8 as follows:
"It is common knowledge that very often after a
writ petition is heard for some time when the
petitioner or his counsel finds that the Court is
not likely to pass an order admitting the petition,
request is made by the petitioner or by his
counsel, to permit the petitioner to withdraw the
writ petition without seeking permission to
institute a fresh writ petition. A Court which is
unwilling to admit the petition would not
ordinarily grant liberty to file a fresh petition
while it may just agree to permit the withdrawal
of the petition."
In paragraph 9 of the said decision, it is also mentioned as
follows:
"But we are of the view that the principle
underlying Rule 1 of Order XXIII of the Code
should be extended in the interest of
administration of justice to cases of withdrawal of
writ petition also, not on the ground of res
judicata but on the ground of public policy as
explained above. It would also discourage the
litigant from indulging in bench-hunting tactics."
We are of the opinion that the decision in Sarguja Transport
case (supra) has to be understood in the light of the
observations in paragraphs 8 & 9 therein, which have been
quoted above. The said decision was given on the basis of
public policy that, if while hearing the first writ petition the
Bench is inclined to dismiss it, and the learned Counsel
withdraws the petition so that he could file a second writ
petition before what he regards as a more suitable or
convenient bench, then if he withdraws it he should not be
allowed to file a second writ petition unless liberty is given to
do so. In other words, bench-hunting should not be
permitted.
It often happens that during the hearing of a petition the
Court makes oral observations indicating that it is inclined to
dismiss the petition. At this stage the counsel may seek
withdrawal of his petition without getting a verdict on the
merits, with the intention of filing a fresh petition before a
more convenient bench. It was this malpractice which was
sought to be discouraged by the decision in Sarguja Transport
case (supra)."
11 . It would also be worthwhile to reproduce the relevant
portion of the recent judgment of the Apex Court in Ramesh
Chandra Sankla & Ors. Vs. Vikram Cement (2008) 14 SCC 58
where again the Apex Court after referring to the principles of law
laid down in the previous judgments of Daryao Singh, Sarguja
Transport, Sarva Shramik cases held as under:-
"From the above case law, it is clear that it is open to the
petitioner to withdraw a petition filed by him. Normally, a
Court of Law would not prevent him from withdrawing his
petition. But if such withdrawal is without the leave of the
Court, it would mean that the petitioner is not interested in
prosecuting or continuing the proceedings and he abandons
his claim. In such cases, obviously, public policy requires that
he should not start fresh round of litigation and the Court will
not allow him to re-agitate the claim which he himself had
given up earlier.
51. In Sarguja Transport Service, extending the principles laid
down in Daryao, Venkataramiah, J. (as His Lordship then
was) concluded;
We are of the view that the principle underlying
Rule 1 of Order XXIII of the Code should be
extended in the interests of administration of
justice to cases of withdrawal of writ petition
also, not on the ground of res judicata but on the
ground of public policy as explained above. It
would also discourage the litigant from indulging
in bench-hunting tactics. In any event there is no
justifiable reason in such a case to permit a
petitioner to invoke the extraordinary jurisdiction
of the High Court under Article 226 of the
Constitution once again. While the withdrawal
of a writ petition filed in a High Court
without permission to file a fresh writ
petition may not bar other remedies like a
suit or a petition under Article 32 of the
Constitution of India since such withdrawal
does not amount to res judicata, the remedy
under Article 226 of the Constitution of
India should be deemed to have been
abandoned by the petitioner in respect of
the cause of action relied on in the writ
petition when he withdraws it without such
permission."
12. Before applying the principles of law as culled out herein
above, let me revert back to the facts of the present case, confining
to the objections raised by the respondent with regard to the non-
maintainability of the present petition. Indisputably, the petitioner
had invoked the jurisdiction of the Apex Court under Article 32 of the
Constitution of India to seek the same relief as has been sought by
them in the present petition moved under Article 226 of the
Constitution of India. In para 29 of the present petition, the
petitioners have clearly stated the fact of filing of the writ petition
before the Hon'ble Supreme court vide W.P.(C) No.403/2009 which
was permitted to be "dismissed as withdrawn" by the order dated
18.9.2009. It would be essential here to reproduce the order passed
by the Hon'ble Supreme Court in the said writ petition which is as
under:-
ITEM NO.8 COURT NO.3 SECTION X
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO(s). 403 OF 2009
(FOR PREL. HEARING)
IDPL VRS & RETD.EMP.FEDN.TR.SEC.& ORS. Petitioner(s)
VERSUS
SEC.GOVT.OF INDIA,MIN.OF CHEM.&FER.&ORS. Respondent(s)
Date: 18/09/2009 This Petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE S.H. KAPADIA
HON'BLE MR. JUSTICE AFTAB ALAM
For Petitioner(s) Mr. S.K. Sinha,Adv.
For Respondent(s)
UPON hearing counsel the Court made the following
ORDER
Dismissed as withdrawn.
(N. ANNAPURNA) (MADHU SAXENA)
COURT MASTER COURT MASTER
***
13. The aforesaid order passed by the Hon'ble Apex Court
clearly shows that the matter was heard by the Apex Court and then
the same was dismissed as withdrawn by the petitioners. Once the
matter was heard by the Apex Court at the admission stage there
could have been the following possibilities:
Firstly the court could have issued a show cause notice for
admission or
Secondly the court could have dismissed the matter in limine or
Thirdly the petitioner could have withdrawn the petition after
taking leave from the court to file the same before the
appropriate court or forum or
Fourthly finding the court inclined to dismiss the petition the
counsel seeks withdrawal of the petition without inviting any
observations of the court on the merits of the case.
14. As observed by the Apex Court in the case of Sarguja
Transport (Supra) sometimes this practice of bench hunting is
adopted by the petitioner with an intention of filing a fresh petition
before a more convenient Bench and this kind of malpractice was
sought to be discouraged by the Apex Court in the said case. The
petitioners in the present case have not explained any reasons as why
the leave from the Apex Court was not sought to seek an
appropriate remedy by filing a writ petition under Article 226 of the
Constitution of India and in the absence of any explanation offered in
the present petition, it would be quite evident that the petition under
Article 32 of the Constitution of India was withdrawn by the
petitioners when the counsel for the petitioner found that the Apex
Court was inclined to dismiss the petition. It is a settled legal position
that when a petition under Article 32 has been dismissed then the
petition based on the same facts would not be maintainable under
Article 226 of the Constitution of India and the position would be the
same vice versa as well. However, if the petition under Article 226 of
the Constitution of India is dismissed not on merits but on the
grounds of laches, acquiescence or on the ground that there was an
alternative remedy available to the petitioner, then such dismissal
would not operate as a bar to a petition under Article 32 of the
Constitution of India, though of course the court in disposing the
application might consider whether those grounds would suffice to
dismiss the petition under Article 32 also (Joseph Pothen Vs.
State of Kerala AIR 1965 SC 1514).
15. The bar of res judicata or constructive res judicata would
apply even to a petition under Article 32 of the Constitution where
similar petition seeking the same relief had been filed under Article
226 before the High Court and the decision rendered against the
petitioner therein has not been challenged by filing an appeal in the
Supreme Court and has been allowed to become final. However, this
principle, namely, the bar of res judicata or principles analogous
thereto would not apply to a writ of habeas corpus where the
petitioner prays for setting him at liberty. If a person under
detention files a writ of habeas corpus under Article 226 before the
High Court and the writ petition is dismissed (whether by a detailed
order after considering the case on merits or by a non-speaking order)
and the said decision is not challenged by preferring a special leave
petition under Article 136 and is allowed to become final, it would
still be open to him to file an independent petition under Article 32
seeking a writ of habeas corpus as was held in T.P. Moideen Koya
Vs. Govt. of Kerala & Ors., (2004) 8 SCC 106.
16. There cannot be any doubt that Article 32 is a very
important safeguard for the protection of the fundamental rights of
the citizens and the Supreme Court has been entrusted with the
solemn task of upholding fundamental rights of the citizens of this
country. So far the jurisdiction of High Court under Article 226 of the
Constitution of India is concerned, it is not constituted as an inferior
Court in the Constitutional Scheme but enjoys wider powers to go
into the various questions of facts and law and the extra-ordinary
jurisdiction of the High Court is wide and extensive to issue
prerogative writs for enforcement of the fundamental rights and
therefore, so far the invasion or enforcement of the fundamental
rights of the citizens are concerned, the jurisdiction of the Supreme
Court under Article 32 of the Constitution of India and that of the
High Court under Article 226 of the Constitution of India are
concurrent in nature. The said principle was reiterated by the Apex
Court in a number of judgments but in the case of Mohammed Ishaq
vs. S. Kazam Pasha 2009(7) SCALE 75 it held that it is well settled
position of law that simply because a remedy exists in the form of
Article 226 of the Constitution for filing a writ in the concerned High
Court, it does not prevent or place any bar on an aggrieved person to
directly approach the Supreme Court under Article 32 of the
Constitution. It is true that the court has imposed a self-restraint in its
own wisdom on the exercise of jurisdiction under Article 32 where the
party invoking the jurisdiction has an effective, adequate alternative
remedy in the form of Article 226 of the Constitution. However, this
rule which requires the exhaustion of alternative remedies is a rule of
convenience and discretion rather than a rule of law. At any rate it
does not oust the jurisdiction of the Apex Court to exercise its writ
jurisdiction under Article 32 of the Constitution.
17. But, there may be cases where on approaching the Apex
Court under Article 32 of the Constitution of India, the Apex Court
may direct the petitioner to first approach the High Court under
Article 226 of the Constitution of India or the petitioner may
withdraw the petition so as to first exhaust his remedy under Article
226 of the Constitution of India, but in the area where the Supreme
Court and the High Court exercise concurrent jurisdiction in the case
of withdrawal by the petitioner to approach the High Court under
Article 226 of the Constitution of India, the order passed by the Apex
Court must reflect that leave has been obtained by the petitioner so as
to move the High Court. In the absence of such leave, if withdrawal
by the petitioner is made and that too after due hearing is given by
the Apex Court, then certainly filing of the same petition based on the
same cause of action seeking the same relief would be clearly hit by
the principles of public policy as envisaged under Order 23 Rule 1
CPC. This is what has happened in the facts of the present case,
when upon hearing, counsel for the petitioner not finding the Apex
Court inclined to grant any relief sought withdrawal of the petition
which was accordingly "dismissed as withdrawn" by the order dated
18.09.2009. Therefore, on the same facts and cause of action and
seeking the same relief, the petitioner cannot be allowed to reagitate
the same before this court by filing a petition under Article 226 of the
Constitution of India. The present petition is clearly hit by the
principles of law authoritatively settled by the Apex Court in the case
of Sarguja Transport (Supra).
18. In the light of the aforesaid legal position discussed above,
I find myself in complete agreement with the stand taken by the
respondent that since the said petition of the petitioner was
"dismissed as withdrawn" by the Apex Court after complete hearing
was given by it, therefore, the present petition cannot be held
maintainable in view of the bar envisaged under Order 23 Rule 1 CPC.
19. Since this court has taken a view that the present writ
petition filed by the petitioner is not maintainable, therefore, so far
the merits of the case are concerned, it would not be appropriate to
give any finding on the same.
20. In the backdrop of the above position, the present petition
is dismissed as being not maintainable in the eyes of law.
April 19, 2010 KAILASH GAMBHIR,J
