Delhi High Court
Himani Malhotra vs Indraprastha College For Women & ... on 2 January, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: January 02, 2018
+ W.P.(C) 11251/2017 & C.Ms. 45985-86/2017
HIMANI MALHOTRA ..... Petitioner
Through: Mr. G. Tushar Rao & Mr. Mayank
Sharma, Advocates
Versus
INDRAPRASTHA COLLEGE FOR WOMEN & ANR.
.....Respondents
Through: Mr. Rajesh Gogna, Ms. Vipra
Bhardwaj & Mr. Akhilesh Kumar, Advocates
for respondent No.1
Ms. Slomita Rai, Advocate for Mr. Mohinder
J.S. Rupal, Advocate for respondent- Delhi
University
QUORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The question which falls for consideration in this petition is,
whether a person can assert a right which stood relinquished earlier.
2. Petitioner is a suspended Assistant Professor, who was appointed
against a permanent post on 29th September, 2010 in the Department of
Physical Education by respondent-College. In pursuance to Show Cause
Notice of 28th July, 2012, petitioner was put under suspension on 21 st
August, 2012, after respondent-University granted its approval on 13th
August, 2012. It is not disputed that petitioner in earlier round of
litigation had unsuccessfully challenged the impugned Show Cause
Notice of 28th July, 2012, Suspension Order of 21st August, 2012 and
approval of 13th August, 2012 granted by respondent-University.
Petitioner's earlier writ petition W.P.(C) 5758/2012 laying challenge to
the aforesaid Show Cause Notice of 28th July, 2012 was disposed of vide
order of 5th July, 2013 (Annexure P-7) with directions to conclude the
inquiry within a stipulated time frame. It is relevant to note that the
challenge to the impugned Show Cause Notice of 28 th July, 2012 and
petitioner's Suspension Order of 21st August, 2012 was not adjudicated
on merits by this Court in its order of 5th July, 2013.
3. In this petition, challenge is to the initiation of inquiry by
respondent-College on the ground that the governing body of respondent-
College was not validly constituted and that it was not having the
requisite quoram. Quashing of Minutes of Meeting of 25th July, 2012 of
respondent- College; Resolution passed by its governing body in the
meeting on 27th July, 2012 to issue Show Cause Notice to petitioner;
Governing Body's Minutes of Meeting of 7th August, 2012 rejecting
petitioner's reply to Show Cause Notice and issuance of Suspension
letter of 21st August, 2012, is sought by petitioner. A challenge is also
laid to the Minutes of Meeting of 12th September, 2012 whereby the
Inquiry Officer was appointed.
4. At the outset, learned counsel for respondent-College raises
objection to the maintainability of this petition by submitting that this
petition is impliedly hit by principle of res judicata. Learned counsel for
respondent-College draws the attention of this Court to a copy of earlier
writ petition W.P.(C) 5758/2012 (Annexure P-6 colly) to point out that
petitioner had also taken the ground of respondent-College's Governing
Body being truncated as it comprised of five members only. It is
submitted by learned counsel for respondent-College that in pursuance to
the Show Cause Notice of 28th July, 2012, a fresh inquiry has been
initiated and petitioner has been participating for the past four years and
filing of multiple petitions is unduly prolonging the inquiry proceedings,
as the plea of respondent- College's governing body being truncated was
urged earlier also. So, it is submitted that the objection of governing body
of respondent-College being truncated stood abandoned/ waived.
5. Learned counsel for respondent-College submits that the basis to
file the instant writ petition, as spelt out in Paragraph No.3 (p) of the writ
petition, cannot provide a fresh ground to petitioner to forestall the
inquiry against her. Reliance is placed upon Supreme Court's decision in
Beerbal Singh (D) through LRS Vs. State of U.P. & Ors. 2017 SCC
OnLine SC 688 by counsel for first respondent to submit that filing of
second writ petition on the same cause of action is not only misconceived
but is an ill advised action. Reliance is also placed upon another Supreme
Court's decision in Orissa Power Transmission Corporation Limited &
Ors. Vs. Asian School of Business Management Trust & Ors. (2013) 8
SCC 738 to submit that when the prayer is substantially similar, dismissal
of the first petition would operate as res judicata. Counsel for first
respondent also places reliance upon Supreme Court's decision in State of
Punjab Vs. Davinder Pal Singh Bhullar 2012 AIR (SC) 364 to submit
that waiver is an intentional relinquishment of a right.
6. On the other hand, learned counsel for petitioner maintains that the
issue of respondent-College's governing body being truncated was not
earlier adjudicated upon and so, it is not hit by res judicata or
constructive res judicata. Counsel for petitioner also submits that there is
no question of any relinquishment or waiver, as petitioner for the first
time had come to know about the requisite quoram of college's governing
body being fifteen in October, 2017 from the pleadings in W.P.(C)
616/2013. It is further submitted that the question of respondent-
College's governing body being not validly constituted and of not having
requisite quoram, goes to the root of the matter and since governing body
was not validly constituted, therefore, initiation of disciplinary
proceedings against petitioner is void ab initio.
7. After having heard counsel representing both the sides on the
aspect of maintainability of this petition and on perusal of material on
record and decisions cited, I find that the plea of respondent-College's
governing body being truncated was specifically taken by petitioner in the
earlier round of litigation. It is evident from the order of 5 th July, 2013
(Annexure P-7) passed in earlier round of litigation, that instead of
asserting the plea of respondent- College's governing body being
truncated, petitioner herein had agreed to get the earlier writ petition
disposed of with direction to conclude the disciplinary proceedings within
a particular time frame.
8. Since the order of 5th July, 2013 passed in the earlier writ petition
W.P.(C) 5758/2012 was an agreed order, therefore, there is no escape
from the conclusion that petitioner had intentionally waived the right to
challenge the initiation of disciplinary proceedings on the ground of
respondent-College's governing body being truncated. Supreme Court in
Davinder Pal Singh Bhullar (supra) has reiterated that waiver is an
intentional relinquishment of right. Once petitioner has agreed to
conclusion of disciplinary proceedings within a particular time frame,
then the logical conclusion is that she had intentionally waived her right
to challenge the initiation of disciplinary proceedings, in which she is
participating now. In such a situation, petitioner cannot be now permitted
to turn around amidst inquiry to reagitate the plea which she had earlier
waived. It is impermissible to do so, even if some material has now come
to light.
9. In the light of aforesaid, this Court finds that petitioner's challenge
to impugned minutes of meetings of respondent-College's governing
body, is not maintainable, as petitioner had made an attempt to do so in
the earlier round of litigation in W.P.(C) 5758/2012 and because it is
evident from the order of 5th July, 2013 (Annexure P-7) that the said
challenge was not taken to its logical end. Rather, petitioner had agreed to
get the earlier writ petition W.P.(C) 5758/2012 disposed of with
directions to conclude the inquiry proceedings within a particular time
frame.
10. Consequentially, this petition and applications are dismissed as
misconceived.
SUNIL GAUR
(JUDGE)
JANUARY 02, 2018
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