RIPUSUDAN DAYAL, J. ( 1 ) THE petitioner, S K Bardewa, was a permanent member of Sikkim State Civil Service and was working as Additional Secretary, Programme Implementation and Evaluation Department when disci phnary proceedings were initiated against him vide Memo No 538/gen/dop dated 5-6-1996 on the charge that while serving as Deputy Director, Information and Public Relation Department, Government of Sikkim he applied for and secured a loan of Rs 2 lakhs from the Sikkim Industrial Development and Investment Corporation Ltd , (SID1co) Gangtok in his capacity as proprietor of M/s Himalchuh Hotel, Development Area and engaged himself directly in Trade and Business in violation of rule 16 of Sikkim Govt Servants (Conduct) Rules, 1981 Enquiry was conducted by Shri M. K. Pradhan who submitted his report on 24-1-1997 Annexure P-7 It appears from the report that no oral evidence was produced before the Enquiry Officer and he gave his findings on the basis of the documents placed before him He recorded the following findings (I) The petitioner had applied for loan for construciton of a hotel in the name of Himalchuh in Development Area after completing due formalities as per SIDICO requirements In the application he had stated himself to be the sole proprietor/partner/managing director of the concerned firm/company, (II) The petitioner stated vide item three of the affidavit that he was not an employee of the State government or any institution controlled by the State Government and it was necessary that a senior government servant did not give wrong information to the effect that he was not a government servant even when he was holding a senior post in the Government, (III) Repayment of loan had been dismal resulting in the SIDICO approaching the court of Certificate Officer, Government of Sikkim to issue a certificate of public demand certifying that the petitioner S K Bardewa, proprietor Himalchuh Hotel, Development Area was liable to pay Rs 3,94,557 59 as due to SIDICO, the certificate holder, and (IV) No Objection Certificate issued by the Secretary, Information and Public Relations indicates only loan from SIDICO and does not specifically state that the loan was obtained for the purpose of construction of a hotel futher the report stated"duly examining all the aspects and all sides of the matter, there has been serious lapses on the part of Shir S K Bardewa in providing a wrong informa tion in the affidavit etc and not inform ing the Govt about construction of hotel, completion thereof and running of the actual hotel by his son Shri Satish Bardewa in this premises After obtain ing the licence for running a hotel in his name, though Shn S K Bardewa has also declared himself to be the proprie tor of the hotel and has his residence in the premises of the hotel building the Deptt of Personnel, Administrative Reforms and Train ing has however pre ferred to keep silent and did not reply or explained nor clarified the points raised regarding the validity of the No Objection Certificate issued by head of Deptt Although it is pertinent that Sikkim Govt Servant (Conduct Rules) 1981 being administered by the then Establishment Deptt now Deptt of Personnel, Administrative Reforms and Training, it should have been the correct authority to deal with such matters Due to the silence of the Deptt of Personal the element of doubt has been raised". Thereafter, the Government consulted the Public Service Commission Vide letter No 1183/spsc/97 dated 14th March, 1997 the Commission communicated the findings/ad vice vide their report signed by the Secretary of the Commission The Commission reported that the State Government had followed the required formalities for conducting the disci phnary proceedings and based on the facts gathered during enquiry, the Enquiry Officer had found the petitioner guilty of the charge levelled against him vide enquiry report dated 20-1-1997 Thereafter Order No 3365/ (G)/ DPO dated 18-3-1997 was issued by the Government of Sikkim, Department of Personnel, Adm Reforms and Trg imposing upon the petitioner the penalty of compulsory retirement under Rule 3 (vii) of the Sikkim Government Servants (Discipline and Appeal)rules 1985 making it clear that he shall be entitled to full retirement benefits as admissible to him under Sikkim Services (Pension) Rules, 1990 Appeal filed by the petitioner against the penalty of compulsory retirement was dismissed by the competent authority vide Order No 6426/g/dop dated 20-6-1997, Government of Sikkim, Department of Personnel, Adm, Reforms and Trg , Annexure p-10 The petitioner challenged the Order dated 18-3-1997 imposing the penalty of compulsory retirement and the order dated 20 6-1997 dismissing his appeal and also the disciplinary proceedings initiated against him on 5-6-1996 in Civil Writ Petition No 58 of 1998 That Writ Petition was dismissed on 27-7-1999 as not pressed The order passed on that date reads as under -"the learned counsel for the petitioner does not press the writ peition The writ petition is dismissed as not pressed". Before the disciplinary proceedings had been inhaled on 5 6-1996, a criminal case had been registered by the Vigilance Police Department against the petitioner on 9-4 1996 The Vigilance Police Department submitted charge sheet on 23-9-1996 under section 168 of the Indian Penal Code Thus, the charge sheet was submitted when the disciplinary proceedings were pending Criminal Case No 98/99 was decided by the Chief Judicial Magistrate, East and North Districts at Gangtok on 21-10-2000 acquitting the petitioner of the offence under Section 168 Indian Penal Code Thereafter, the peitioner made representation to the Government for reinstatement The Government not having accepted the same, the present writ petition was filed by the petitioner on 12-9-2001 almost for the same reliefs as had been claimed in the earlier writ petiton ( 2 ) SHIR S P Wangdi, learned Advocate General appearing on behalf of the respondents has taken a preliminary objection that the earlier petition brought by the petitioner having been dismissed as not pressed, the present petition is not maintainable under Order 23 Rule 1 of the Code of Civil Procedure On the other hand, Shir Manoj Chatterjee, Advocate appearing on behalf of the petitoner has sbumitted that the petitioner has been preju diced on account of the ill founded disciplinary proceedings, unsatisfactory enquiry report, the order of penalty which was imposed without furnishing a copy of the report and also unsat isfactory order passed in appeal He has further submitted that the fact that the petitioner was exonerated of the offence under section 168 of the Indian Penal Code gives a fresh cause of action to the petitioner He also submits that previous petition was not pursued in order to prevent prejudice in the Criminal Case and petitioner did not gain anything by with drawal of the previous petition ( 3 ) THE question whether, after the with drawal of the first petition without obtaining the permission to bring a fresh petition on the same cause of action a second petition would he was authoritatively decided by the Supreme Court in Sarguja Transport Service v. S T A T where the court observed"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 beneficium non datur The law comfers upon a man no rights or benefits which he does not desire Whoever waives, abandons or disclaims a right will loose 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 permis sion 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 pnor adjudication of a suit or an issue is in volved, yet the Code provides, as stated earlier that a second suit will not he 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 jusiice 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 per mission to institute a fresh writ petition A Court which is unwilling to admit the petition would not ordinarily grant lib erty to file a fresh petition while it may just agree to permit the withdrawal of the petition It is plain that when once a wnt petition filed in a High Court is withdrawn by the petitioner himself he is pre eluded from filing an appeal against the order passed in the writ petiton because he cannot be considered as a party aggrieved by the order passed by the High Court 9 The point for consideration is whether a petitioner after withdrawing 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 case (AIR 1961 SC 1457) is of no assistance But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be ex tended in the interests of administration of justice to cases of withdrawal of writ petiton 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 petiton 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 with drawal 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. "thus, where the petitioner has withdrawn from the earlier petition without obtaining permission for bringing another petition on the same cause of action, the second petiton would be barred on the ground of public policy underly ing Rule 1 Order 23 of the Code This decision was rendered on the footing that the pro visions of the Code of Civil Procedure, 1908 are not in terms applicable to the writ proceedings although the procedure prescribed therein as far as it can be made applicable is followed by the High Court in disposing of the writ petitions In the Sikkim High Court, there is A specific provision contained in Rule 113 of the Sikkim High Court (Practice and Procedure) Rules, 1991 making the provisions of the Code of Civil Procedure, 1998 applicable in so far as they are not inconsistent with the Rules Rule 113 reads as under 113 Application of CPC-ln all matters for which no provision is made by these rules, the provisions of the Code of Civil Procedure 1908, shall apply mutatis mutandis, in so far as they are not inconsistent with these rules " thus there is no doubt that the previous petition having been dismissed as not pressed the prensent petition would not be maintainable unless in the meanwhile fresh cause of action has arisen In support of the submission that another fresh cause of action has arisen subsequent to the judgment of acquittal by the learned Chief Judicial Magistrate under Section 168 of the Indian Penal Code, learned counsel for the petitoner has referred to paragraph 34 in M Paul anthony v. Bharat Gold Mines Ltd Paragraph 34 reads as under 34 There is yet another reason for dis carding the whole of the case of the respondents As pointed out earlier the criminal case as also the departmental proceedings were based on identical set of facts namely, the raid conducted at the appellant's residence and recovery of incriminating articles therefrom" The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery They were the only witnesses ex amined by the enquiry officer and the enquiry officer relying upon their state ments, came to the conclusion that the charges were established against the appellant The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant The whole case of the pros ecution was thrown out and the appellant was acquitted In this situation therefore where the appellant was ac quitted by a judicial pronouncement with the finding that the raid and recovery at the residence of the appellant were not proved it would be unjust, unfair and rather oppressive to allow the find ings recorded at the ex parte depart mental proceedings to stand " reference may also be made to paragraph 33 of the judgment which reads"33 Since in the instant case the appellant was not provided any subsistence allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings againsi him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of subsistence allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the enquiry officer at such proceedings, which were held ex parte, stand vitiated. "from a reading of both the paragraphs, it would appear that in certain situations the judgment of acquittal in a judicial proceeding may be allowed to upset the findings recorded at the ex-parte departmental proceedings. In the instant case, departmental proceedings were not ex-parte The question whether the judgment of acquittal can be allowed to affect the findings of the Enquiry Officer can be decided only in proper proceedings before a High Court. Decision in M. Pal Anthony does not lay down that even when the earlier writ petition has been dismissed as not pressed, another petition would be maintainable after the judgment of acquittal is rendered by the criminal court. If the petitioner thought that he would be prejudiced by the conclusion of the disciplinary proceedings prior to the conclusion of the criminal proceeding he could have prayed for the stay of the disciplinary proceeding until the decision in the criminal proceeding. In M Paul Anthony (supra) the Supreme Court referred to paragraph 14 in State of Rajasthan v B. K. Meena as under.-"19. In M Paul Anthony (supra) the Supreme Court referred to paragraph 14 in State of Rajasthan v B. K. Meena as under.-"19. The entire case-law was reviewed once again by this Court in State of Rajasthan vs B. K. Meena wherein it was laid down as under (SCC pp 422-23, para 14)"14 It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that 'the defence of the employee in the criminal case may not be prejudiced' This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact Moreover, 'advisability, 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case The ground indicated in D C M. (AIR 1960 SC 806) and Tata Oil Mills (AIR 1965 SC 155) is also not an invariable rule It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings One of the contending considerations is that the disciplinary enquiry cannot be - and should not be -delayed unduly So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved They get bogged down on one or the other ground They hardly ever reach a prompt conclusion That is the reality in spite of repeated advice and admonitions from this Court and the High Courts If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage The interests of administration and good government demand that these proceedings are concluded expeditiously It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly The disciplinary proceedings are meant not rea/fy to punish the guilty but to keep the ad ministrative machinery unsullied by getting rid of bad elements The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law It is not also in the interest of administration that persons accused of senous misdemeanor should be continued in office indefinitely, i e , for long periods awaiting the result of criminal proceedings It is not in the interest of administration It only serves the interest of the guilty and dishonest While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long pen ods pending criminal proceedings Stay of disciplinary proceedings cannot be, and should not be, a matter of course All the relevant factors, for and against should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above "in paragraph 22 (i) the Court held that "22 (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately " ( 4 ) THUS, it is now well established that departmental proceedings and proceedings in cnminal cases can be conducted simultaneously as there is no bar in their being conducted simultaneously, though separately In a given case, the delinquent officer may seek stay of the departmental proceedings until the conclusion of the criminal proceedings and if he does so then it is for the court to decide as to whether in the circumstances of the case the disciplinary proceedings should or should not be stayed But in the instant case, the petitioner never sought the stay of the disciplinary proceeding pnor to the conclusion of the criminal proceedings The legal position being that departmental proceedings and proceedings in criminal cases can proceed simultaneously inplies that acquittal in a criminal case after the dismissal of the previous writ petition for not being pressed does not give a fresh cause of action to impugn the disciplinary proceedings and the actions taken therein There is no merit in the submissions made on behalf of the peti tioner that the petitioner had a good case or that he did not gain anything by not pursuing the previous petition or that the previous petition was not pursued to prevent prejudice to the petitioner in the criminal case The petitoner had already pleaded the necessary facts in the writ petition and therefore, no question of any prejudice could possibly arise by pursuing the petition Furthermore, the question of prejudice is of no relevance It is also not relevant as to what made the petitioner not to press the previous petiton The relevant factor is whether at the time of not pressing the previous petition, the petitioner had sought for permission to bring fresh petition on the same cause of action and had also got the same. The petitioner having not obtained the same, the present petiton is barred by the policy underlying Order 23 Rule 1 of the Code of Civil Procedure and also the provisions of that rule which are applicable in view of rule 113 of the Sikkim High Court (Practice and Procedure) Rules, 1991 and so the present petition is not maintainable ( 5 ) IN the result, the writ petition is dismissed However, there shall be no order as to costs petition dismissed. , --- *** ---