Rajasthan High Court

Om Prakash Sharma S/O Shri Ram ... vs State Of Rajasthan on 14 December, 2021

Bench: Rekha Borana

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Civil Writ Petition No. 9109/2019

Om Prakash Sharma S/o Shri Ram Swaroop Sharma, Aged 49
Years, R/o Kalyanpura Road, Near Railway Crossing, Ajmer
----Petitioner
Versus
1. State of Rajasthan, Through Commissioner Secondary
Education, Rajasthan, Bikaner
2. Managing Committee, Mayo College, Ajmer Through
Secretary
3. Mayo College Girls School, Ajmer Through Principal
----Respondents

For Petitioner(s) : Mr. Harshad Kapoor
For Respondent(s) : Mr. Abhishek Bhandari, Dy. G.C
Mr. Ajeet Kumar Bhandari with
Mr. Atul Bhardwaj

HON'BLE MS. JUSTICE REKHA BORANA

Order

14/12/2021

Brief facts of the case are as under:

The petitioner was appointed as Lower Division Clerk by the

respondent-college on 13.01.1996 after following the due course

of law. Because of certain complaints and unsatisfactory behaviour

of the petitioner, a domestic enquiry was held against the

petitioner vide order dated 10.04.2006. Enquiry Officer submitted

his report dated 16.06.2006 and found the petitioner guilty. On

the basis of enquiry report, disciplinary proceedings were

conducted against the petitioner and vide report dated

17.01.2007, the Disciplinary Authority too reached to the

conclusion that the petitioner was guilty. In terms of the same, a

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show-cause notice was issued to the petitioner as to why he

should not be dismissed from services.

Aggrieved against the said notice, the petitioner preferred

an appeal before the Rajasthan Non-Government Educational

Institutions Tribunal, Jaipur, and vide a stay application, prayed for

an interim order too. Vide order dated 29.01.2017, Stay

application of the petitioner was rejected on the ground that the

appeal of the petitioner was premature being preferred against a

show cause notice only.

After the rejection of the Stay application of the petitioner on

29.01.2017, just after a period of two days, the petitioner was

dismissed from his services vide order dated 02.02.2007.

Aggrieved against the same, petitioner preferred an appeal before

the Tribunal which was decided vide order dated 13.02.2019. Vide

order dated 13.02.2019, the Tribunal has affirmed the order of

dismissal of service of the petitioner and rejected his appeal.

Against the same, the present petition has been preferred.

It has been argued by Counsel for the petitioner that appeal

of the petitioner has been rejected by the Tribunal only on the sole

ground that the petitioner had already availed the remedy of an

appeal on the same grounds and for the same relief. The Tribunal

held that the appeal was barred by the principles of res-judicata

and therefore, the same was not decided on merits. Counsel has

argued that the findings of the Tribunal being totally contrary to

Law deserves to be set aside.

Counsel for the respondents on the contra argued that in the

earlier appeal as filed by the petitioner, the order passed in

pursuance to the enquiry and disciplinary proceedings were under

challenge and the same had been challenged again in the second

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appeal which cannot said to be permissible as the earlier appeal

was not pressed by the appellant on 28.01.2008. Therefore, the

order of the Tribunal being valid deserves to be affirmed.

Heard learned counsel for the parties and perused the

material available on record.

A perusal of award dated 13.02.2019 passed by the Tribunal

shows that it has been decided on the basis of fact that as in

earlier appeal no liberty was sought by the appellant while making

a prayer to "Not Press" it, the second appeal on the same grounds

could not be maintainable and hence the Tribunal did not proceed

to decide the same on merits. The Tribunal has specifically held

that it is not making any observations pertaining to the enquiry

proceedings and the conclusions thereof. The Tribunal has relied

upon the judgment of the Apex Court in the case of Ashok

Kumar Sharma Vs. Oberoi Flight Services Service (2010) 1

SCC 142.

I have gone through the judgment as relied upon by the

Tribunal. The same does not lay down any proposition pertaining

to the withdrawal of any petition or withdrawal without any liberty

being taken or granted. The matter pertains to the question of

grant of monetary compensation in lieu of reinstatement to the

workman. Therefore, it is clear that the Tribunal proceeded on the

wrong premise to rely upon the said judgment.

It has been argued by Counsel for the respondent that

inadvertently citation of Ashok Kumar Sharma (supra) has been

mentioned whereas the said proposition has been laid down in

1987 (1) SCC 5 Sarguja Transport Service Vs. State

Transport Appellate Tribunal. In the said judgment it has been

held as under:

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"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.
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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. ...................................................................................................... ......................................................................................................

We, however makes 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 fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether."

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firstly, the judgment pertains specifically to writ petitions

filed before the High Court only.

secondly, the same is based on principle of res judicata. So

far as present petition is concerned the principle of res judicata

would not apply as res judicata pre-supposes a matter being

finally heard, adjudicated and decided.

In the present matter the second appeal was filed in the year

2007 and the first appeal which was pending at that time was

disposed as "Not Pressed" on 28.01.2008. Meaning thereby on the

date of filing of second appeal, earlier appeal had neither been heard

nor been adjudicated nor been decided. It is clear on record that the

first appeal was disposed as "Not Pressed" only because of the fact