Himanshu Pande vs Managing Committee Of The Banyan ...
2018 Latest Caselaw 5454 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Date of Judgment: 11th September, 2018

+       LPA 18/2018
        HIMANSHU PANDE                                        ..... Appellant
                  Through:         Mr.Kailash Vasdev, Sr. Adv. with Mr.S.K.
                                   Das, Ms.Mohita, Ms.Nayan Tara and
                                   Mr.Sumer Singh Sandhu, Advocates.

                          versus

        MANAGING COMMITTEE OF THE BANYAN TREE SCHOOL &
        ORS                                     ..... Respondents
               Through: Mr.Samrat Nigam with Ms.Rekha Punya
                        Angara and Mr.Sandeep Mittal, Advocates
                        for R-1 & R-2.
                        Ms.Avnish Ahlawat, Standing Counsel for
                        GNCTD (service) with Mr.N.K. Singh and
                        Ms.Palak Rohmetra, Advocates for R-3.

CORAM:
    HON'BLE MR. JUSTICE G.S.SISTANI
    HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)

1. Being aggrieved by the order dated 02.01.2018 passed by the learned Single Judge of this Court has led to the filing of the present appeal.

2. The appellant herein was appointed to the post of Office Assistant at a monthly salary of Rs.5,500/- on 09.02.1998. His services were regularized on 18.11.1998. In the year 2004, he was served with a show cause notice dated 26.05.2004 calling upon him to submit his reply by 15.06.2004. Not being allowed to enter the School, the appellant sent the reply by Courier,

Registered Post and Speed Post. The Managing Committee of the Respondent School made a complaint against the appellant alleging sexual harassment of a female employee in the Lodhi Colony Police Station on 16.06.2004. Since the appellant was not allowed to enter the School, he filed a writ petition bearing No.15697/2004 before this Court. During the pendency of the aforestated writ petition, the appellant was placed under suspension by an order dated 01.02.2005 passed by the School with effect from 20.01.2005. By an interim order dated 11.04.2005, the respondent School was directed to make regular payment to the appellant and also stayed the disciplinary proceedings.

3. Subsequently, the writ petition was dismissed as withdrawn with leave to the appellant to challenge the order of suspension dated 01.02.2005. The appellant instituted an appeal on 09.04.2007 before the Delhi School Education Tribunal challenging the order of suspension dated 01.02.2005. Vide order dated 16.05.2008 the appeal of the appellant was dismissed. The appellant was served with a memorandum dated 05.11.2008 containing articles of charges and imputations of misconduct. The order dated 16.05.2008 was also challenged by filing writ petition bearing W.P.(C) No.827/2009 before this Court. By memorandum dated 01.04.2010 appellant was called upon to submit his representation if any, against the decision of the disciplinary committee which imposed a major penalty of removal. A representation was filed on 16.04.2010. Thereafter, the School passed an order dated 18.08.2010 imposing a major penalty of removal from the service. The order of removal was challenged before the Delhi School Education Tribunal. The Tribunal vide order dated 29.02.2016 while

quashing the order of removal dated 18.08.2010, directed the respondent School Management to reinstate the appellant.

4. The representations were made by appellant on 11.03.2016 and 23.03.2016 requesting the School Managing Committee for reinstatement of the appellant with back wages. Meanwhile, the respondent School filed a Writ Petition bearing W.P.(C) 4951/2016 which was dismissed as not pressed vide order dated 29.03.2017. The appellant also filed an Execution Petition before the School Tribunal for execution of order dated 29.02.2016 passed by the Delhi School Tribunal. Since the order of Tribunal had attained finality, the appellant filed the present writ petition as the School proposed to reinitiate the inquiry proceedings against the appellant herein. The learned Single Judge by the impugned order dated 02.01.2018 dismissed the writ petition as far as relief sought against reinitiating of inquiry is concerned.

5. Mr.Vasdev, learned senior counsel appearing for the appellant submits that in view of the findings of the Delhi School Education Tribunal, a second inquiry could not have been initiated. Mr. Vasdev clarifies, no doubt before the Tribunal, various grounds for challenging the order of dismissal were raised including the ground that the entire inquiry was bad in law, and vitiated on account of the fact that Sh. O.P. Sharma, Manager of the School was not only a member of Disciplinary Committee who had appeared as SW-2 against the appellant in the inquiry proceedings but also that he was appointed as a Presenting Officer.

6. Mr.Vasdev also submits while relying on para 36 of the order of the Delhi School Education Tribunal that Sh. O.P. Sharma, Manager of the Respondent School who was a Member of Disciplinary Authority was also

appointed as Presenting Officer to conduct the inquiry, initially. Subsequently he was replaced by Mr.N.M. Kausi. Mr.Vasdev further submits that the Tribunal had not quashed the inquiry proceedings only on the ground that Sh. O.P. Sharma, Manager of the Respondent School who was the Member of Disciplinary Authority has been appointed as Presenting Officer to conduct the inquiry but also on other grounds as well. He relies on various observations made by the Tribunal as detailed below to show that the Tribunal has set aside the order of dismissal on merits and not only on technical grounds. He relies on paragraphs 36, 37, 38, 39, 42, 43, 44 and 45 of the order of the Delhi School Tribunal which read as under:-

"36. it is correct that Sh. O.P. Sharma, Manager of the Respondent School who was a Member of Disciplinary Authority, was also appointed as Presenting Officer to conduct the inquiry, initially, however, subsequently he was replaced by Mr.N.M. Kausi, which is clear from the opening paragraph of the inquiry report. The relevant portion of the same is as under:

"By another order dated 07.03.09, Mr.O.P. Sharma, Manager of the school was appointed as the Presenting Officer (PO) who was subsequently replaced by Mr.N.M. Koshi, Assistant Director of the School vide Principal order dated 04.05.09. Mr.Tarsem Chand, a retd. Govt. servant, worked as Defence Assistant during inquiry proceedings to assist Mr.Himanshu Pande, Charged Officer (CO)."

37. Sh. O.P. Sharma had also appeared in the witness box as SW-2 to prove the Articles of Charges No.2. It is also correct that he was a star witness to prove Articles of Charge No.2 and 3, which is clear from the inquiry report itself. Inquiry Officer had relied upon his evidence to give his findings against the Appellant in the inquiry report, rather Inquiry Officer had given his findings on the basis of the evidence of SW-2 Sh. O.P. Sharma as Inquiry Officer has disbelieved SW 3, which is clear

from the following portion of the observation made by the Inquiry Officer in his inquiry report.

"SW-3 was interested witness to depose against the CO to corroborate on the score of Exhibit S-1. He could not understand the question posed to him. To authenticate the documents Exhibit S-2 & S-4 Ms.Sangeeta D. Krishna and Sh. Bisht Suptt. were supposed to be installed as the state witness by the Management."

38. Findings qua Articles of Charge No.2 and 4 mainly based on S-4. S-4 i.e. letter dated 28.04.2002 was not the part of the listed documents in Annexure II. Original of S-4 has not been produced in the inquiry proceedings. Its copy is not duly proved. According to the Appellant later on Managing Committee of Respondent School sanctioned leave w.e.f. 07.06.2004 to him.

39. Receipt No.82 was the most important document to prove the Articles of Charge No.3. SW-2 Sh. O.P. Sharma has stated that he will produce the original receipt No.82 but he has not produced the same. The relevant portion of the inquiry report in this regard is as under:

"During the cross-examination, SW-2 stated that in response to specific query raised in ExB. S-5, the CO clarified to utilize the cash towards expanses done in his reply vide Exb. D-24 and not specified the query raised about the cash being recorded in the duplicate book and day book. Co when threatened with dire consequential action, he deposited the account and accounted for the money he collected. Regarding receipt No.82, SW- 2 stated that it can be produced on the next date of hearing. As the CO did not deposit the cash and accounted for the money he collected in time which shows irresponsible malafide intentions and carelessness towards his duties."

42. In spite of the above findings, Disciplinary Authority concluded that all the Articles of Charge proved against the Appellant and awarded the major penalty of removal. No substantive evidence/reasons has been quoted, as to how the Disciplinary Authority reached to the conclusion that all the Articles of Charge, have been proved against the Appellant, when the Inquiry Officer concluded that Articles of Charge No.1 has not been proved and Articles of Charge No.3 is partly proved. Though qua the Articles of Charge no.3 the Inquiry Officer has also given finding that original receipt No.82 has not been produced. In these circumstances this Tribunal is of the opinion that finding of the Inquiry Officer qua the Articles of Charge No. 3 is also based on surmises and conjuncture in absence of the original receipt no.82.

43. It is well settled legal proposition that when the Disciplinary Authority does not agree with the inquiry report, in that circumstances opportunity of hearing/representation should be granted to the charged officer before taking contrary view to the inquiry report against the charged officer. But in the case in hand no such opportunity of hearing/representation was given to the appellant.

44. It is well proved on the file that Sh. O.P. Sharma was initially appointed as Presenting Officer in the inquiry. However, it is also correct that he has been subsequently removed but his inclination towards the Management is apparent from this very fact. It is undisputed that Sh. O.P. Sharma, Manager of the Respondent School has appeared as Management witness i.e. SW-2. From a bare reading of inquiry report it is also well proved that inquiry officer has strongly relied upon his evidence and based his finding in this inquiry on the basis of the evidence of Sh. O.P. Sharma qua Articles of Charge No. 2 and 3. It is also well proved on the file that Sh. O.P. Sharma as a member of Disciplinary Authority, participated in the meeting of Disciplinary Authority. This Tribunal has already referred the conduct of the EO-Zone-24 Ms.Anita Satia who was also one of the Member of the Disciplinary Authority. The Managing Committee of the

Respondent School has also confirmed the penalty approved by the Disciplinary Authority without considering the fact that the Disciplinary Authority has taken a contrary view to the inquiry report without assigning any reason. Sh. O.P. Sharma, Manager of the Respondent School was also a Member of the Managing Committee of the Respondent School.

45. In view of the above discussion and considering the cumulative effect of all the factors discussed above, this Tribunal is of considered opinion that the major penalty of the removal awarded to the Appellant is illegal and arbitrary hence the impugned orders dated 18.08.2010 is set aside. R1 & R2 are directed to reinstate the Appellant with immediate effect along with all the consequential benefits."

7. In support of his submissions that the second inquiry is not maintainable, learned counsel has placed reliance in the case of "Coal India Limited and Others vs Ananta Saha and Others" reported in (2011) 5 SCC

142. Relevant paragraphs are produced herein below:-

"28. The High Court had given liberty to the appellants to hold de novo enquiry, meaning thereby that the entire earlier proceedings including the charge-sheet issued earlier stood quashed. In such a fact situation, it was not permissible for the appellants to proceed on the basis of the charge-sheet issued earlier. In view thereof, the question of initiating a fresh enquiry without giving a fresh charge-sheet could not arise.

32. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact situation, the legal maxim sublato fundamento cadit opus is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.

50. In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the date of first termination order till date, cannot be entertained

and is hereby rejected. In case the appellants choose to hold a fresh enquiry, they are bound to reinstate the delinquent and, in case, he is put under suspension, he shall be entitled to subsistence allowance till the conclusion of the enquiry. All other entitlements would be determined by the disciplinary authority as explained hereinabove after the conclusion of the enquiry. With these observations, the appeal stands disposed of. No costs."

8. Further, in support of his submissions that there were no justifiable reasons to permit filing of fresh petition without seeking leave, he has placed reliance in the case of "Sarguja Transport Service vs State Transport Appellate Tribunal, Gwalior and Others" reported in AIR 1987 SC 88. Relevant paragraphs are produced herein below:-

"6. It may be noted that while in sub-rule (1) of the former rule 1 of Order XXIII of the Code the words 'withdraw his suit' had been used, in sub-rule (1) of the new rule 1 of Order XXIII of the Code, the words 'abandon his suit' are used. The new sub- rule (1) is applicable to a case where the Court does not accord permission to withdraw from a suit or such part of the claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of the claim. In the new sub-rule (3) which corresponds to the former sub-rule (2) practically no change is made and under that sub-rule the Court is empowered to grant subject to the conditions mentioned therein permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject-matter of such suit. Sub-rule (4) of the new rule 1 of Order XXIII of the Code provides that where the plaintiff abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he would be liable for such costs as the Court might award and would also be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub-rule (3) of rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject- matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of rule 1 of Order XXIII of the Code when the first suit is withdrawn

without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court.

8. 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. 574 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 Art. 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. Mr.Nigam, learned counsel appearing for the School submits that since the main thrust of argument of the appellant before the learned Single

Judge was that the inquiry was null and void in view of the role played by Sh.O.P. Sharma, Manager of the Respondent School, no doubt the School assailed the order passed by the Tribunal but since the Tribunal had allowed the appeal on technical grounds despite assailing the order, in the best interest and to give a full spirit to the order passed by the Tribunal respondent herein decided to hold the inquiry afresh.

10. Mr.Nigam has further contended that the writ petition was listed before the learned Single Judge on 28.03.2017. Counsel for the School had brought to the notice of the learned Single Judge that the School would recommence the inquiry proceedings against the appellant herein as the inquiry proceedings were set aside only on technical grounds. Mr. Nigam, counsel for the School contends that in this backdrop, the second inquiry was initiated which was challenged before the learned Single Judge. He further submits that the learned Single Judge had taken note of the order dated 28.03.2017 and had rightly dismissed the writ petition filed by the appellant herein and the impugned order does not call for any interference.

11. We have heard the learned counsel for the parties and have given our thoughtful consideration to the matter.

12. The appellant herein had challenged the order passed by the School to hold second inquiry by filing a writ petition. The aforesaid writ petition was disposed of by the learned Single Judge while relying on the order dated 28.03.2017 passed in W.P.(C) No.4951/2016. We deem it appropriate to reproduce the order dated 28.03.2017 passed by the learned Single Judge in W.P.(C) No.4951/2016 which reads as under:-

"O R D E R 28.03.2017

1. Learned counsel for the petitioner states that he has instructions not to press the petition because the petitioner will in fact re-commence the enquiry proceedings against the respondent No.1, inasmuch as, the enquiry proceedings are set aside on a technical ground only. It is also submitted before this Court that petitioner has various other rights during continuation of the fresh enquiry proceedings as against the respondent no.1, and which rights the petitioner proposes to exercise.

2. Taking on record submission made on behalf of the petitioner, this writ petition is disposed of as not pressed."

13. Reading of order dated 28.03.2017 would show that the petitioner respondent herein made a statement before the learned Single Judge that he would not press the writ petition because the petitioner respondent herein in fact wanted to recommence the inquiry proceedings against Himanshu Pande as inquiry proceedings had been set aside on technical grounds. Taking note of the submissions so made, the writ petition was disposed of as not pressed.

14. A careful reading of the order dated 28.03.2017 would show that neither any liberty was sought nor the same was granted to the petitioner nor any ground was raised justifying a second inquiry. The short question which arises is whether the Delhi School Education Tribunal had allowed the appeal merely on technical grounds, the answer is in the negative.

15. The paragraphs which we have extracted from the order of the Delhi School Education Tribunal would show that the Tribunal had examined the report of the inquiry officer as well as the charges framed against the appellant herein and thereafter reached a conclusion that neither the receipt no.82, the most important document was proved nor the articles of charge No.3 was proved. Thus, it can safely be said that the order of dismissal was not interfered with only on technical grounds but on other grounds as well.

Having said so, we find that the learned Single Judge in order dated 28.03.2017 in W.P.(C) 4951/2016, the petition filed by the School did not make any observations nor gave any decision on the merits but simply allowed the respondent/School to withdraw the writ petition. As far as the impugned order is concerned, in our view, the view taken by learned Single Judge is not borne out from the order dated 28.03.2017 passed in W.P.(C) No.4951/2016 filed by the respondent herein. We are unable to convince ourselves that the School had sought any liberty or the same was ever granted to recommence a second inquiry against the appellant herein by the learned Single Judge. It is not disputed before us that the second inquiry pertains to identical charges which in our view cannot be initiated.

16. Accordingly, we set aside the impugned order passed by the learned Single Judge. The second inquiry in our view is not maintainable and it is accordingly quashed.

17. Before parting with this case, at the end of the arguments we had asked the parties to explore the possibility of an out of Court settlement to which, the appellant without prejudice to his rights and contentions had submitted that he is ready for an out of Court settlement and is willing to accept the proposal, which was communicated by counsel for the respondent. Learned counsel for the respondent has submitted that they would discuss the same with the Managing Committee of the Respondent School.

16. With the above observations, the LPA is dismissed.

G.S.SISTANI, J

SANGITA DHINGRA SEHGAL, J SEPTEMBER 11, 2018/afa