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2006 DIGILAW 1194 (DEL)

R. B. SINGH v. NTPC

2006-07-21

J.M.MALIK

body2006
J. M. MALIK, J. ( 1 ) THE respondents have called into question the maintainability of the instant writ petition. Previously, the petitioner had filed a writ petition against the following three respondents i. e. National Thermal Power Corporation through its Chairman and Managing Director, Mr. B. N. Ojha, Director NTPC and chairman, Board of Trustees (Pension Fund) and Mr. R. K. Rustagi, General manager NTPC and Secretary (Pension Trust) on 10th May, 2002. Learned Single judge of this Court had given eight weeks time to the respondents to decide the representation of the petitioner. It had granted liberty to the petitioner to approach this Court after disposal of the representation, if so advised. That representation accordingly stood disposed of. ( 2 ) THE second writ petition was filed on 26. 04. 2004. On 17. 5. 2004, the following order was passed by a Single Judge of this Court. "respondent No. 1 has filed C. M. 11363/02 praying that it be deleted from the array of respondents inasmuch as the relief claimed by the petitioner does not relate to respondent No. 1. Averments made by the petitioner would reveal that a pension trust has been constituted. Grievance of the petitioner relates to certain decisions taken by the said trust. Application is allowed. Respondent No. 1 is deleted from the array of respondents. On 26. 4. 2004, writ petition was listed for arguments on the maintainability of the writ petition. Issue of maintainability came up for the reasons recorded in the order dated 26. 4. 2004. Counsel for the petitioner states that he does not wish to press the petition. The writ petition is dismissed as withdrawn. " ( 3 ) LEARNED Counsel for the petitioner admitted that the review petition filed by the petitioner in respect of the order dated 17. 5. 2004 was dismissed. ( 4 ) AGGRIEVED by that order the petitioner filed LPA 861 /2004 and CM 11459/ 2004, wherein the following order was passed on March 13, 2006:"this appeal has been filed against the judgment/order dated 17th May, 2004 and also against the order dated 23. 7. 2004 passed by the learned single Judge. Since the appellant has himself got the writ petition dismissed as not pressed, we cannot interfere in this appeal. Dismissed. " ( 5 ) LEARNED Counsel for the petitioner submitted that he has filed SLP before the Hon'ble Supreme Court. 7. 2004 passed by the learned single Judge. Since the appellant has himself got the writ petition dismissed as not pressed, we cannot interfere in this appeal. Dismissed. " ( 5 ) LEARNED Counsel for the petitioner submitted that he has filed SLP before the Hon'ble Supreme Court. ( 6 ) IN the meantime, the petitioner has filed the instant third writ petition, wherein, the same three petitioners as well as nine trustees have been arrayed as respondents. ( 7 ) LEARNED Counsel for the petitioner submitted that the instant writ petition is maintainable and the objection raised by the respondents is lame of strength. He has cited an authority reported in Kailash v. Nanhku and Others, III (2005) SLT 634=ii (2005) CLT 182 (SC)= air 2005 SC 2441 wherein it was held-"the mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence-processual, as such as substantive. " ( 8 ) HE also cited another authority reported in Kuriakose V. Cherian and others v. Air India Employees Self-contributory Superannuation Pension scheme and Others, 2003 LAB I. C. 2348. On the other hand, learned Counsel for the respondents also cited and admitted that the judgment of the Bombay High court was confirmed by the Apex Court in case reported in VIII (2005) SLT 29= (2005) 8 Supreme Court Cases 404. ( 9 ) INSTEAD of touching the heart of the problem, the learned Counsel for the petitioner just skirted it. The petitioner should have sought permission of the Court with liberty to file this writ petition. Here lies the legal impediment. The law laid down by the Apex Court in the following authority applies to the facts of this case on all fours. Avinash Nagra v. Navodaya Vidyalaya Samiti, (1997) 2 SCC 534 -"13. The High Court also was right in its conclusion that the second writ petition is not maintainable as the principle of constructive res judicata would apply. The law laid down by the Apex Court in the following authority applies to the facts of this case on all fours. Avinash Nagra v. Navodaya Vidyalaya Samiti, (1997) 2 SCC 534 -"13. The High Court also was right in its conclusion that the second writ petition is not maintainable as the principle of constructive res judicata would apply. He filed the writ petition in first instance but withdrew the same without permission of the Court with liberty to file the second writ petition which was dismissed. Therefore, the second writ petition is not maintainable as held by the High Court in applying the correct principle of law. Thus considered we find no merit in the appeal for interference. " ( 10 ) I, therefore, hold that the writ petition is not maintainable. Therefore, the same is dismissed. Writ Petition dismissed.