Suresh Chandra v. Director School Education Dehradun
2019-10-21
ALOK KUMAR VERMA, RAMESH RANGANATHAN
body2019
DigiLaw.ai
JUDGMENT : Ramesh Ranganathan, J. This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No.3845 of 2018 dated 28.05.2019. 2. This case has had a chequered history. The appellant herein had earlier filed Writ Petition (S/S) No.402 of 2016 questioning, among others, the order dated 26.07.2007, passed by the Principal of the College, deducting one day's salary of the appellant-writ petitioner on the ground that he was absent from duty at the college on 02.07.2007 without prior permission and without submitting an application for sanction of leave. 3. The appellant-writ petitioner had filed Writ Petition (S/S) No.402 of 2016 seeking a writ of certiorari to quash the order dated 26.07.2007 whereby an entry of non-payment of one day's salary was made in his service book'; for a writ of mandamus directing the respondents to grant him the overdue claims from the date when the same fell due, and to pay him arrears by amending the seniority list; and for a writ of mandamus directing the respondents to calculate and pay him the overdue claims, from the date when the same fell due, as arrears along with interest thereon. 4. In his order in Writ Petition (S/S) No.402 of 2016 dated 29.02.2016, the learned Single Judge non-suited the appellant-writ petitioner holding that the challenge to the order dated 26.07.2007, whereby an entry was made in his service book of his having been deducted one day's salary for abstaining from duty without application for leave or without leave being sanctioned, was unduly belated and suffered from laches. While he did not examine the appellant-writ petitioner's claim for payment of overdue salary, and other overdue claims, the learned Single Judge held that the Writ Petition was highly belated, and no reasonable explanation was submitted for the long delay in filing the Writ Petition questioning the order dated 26.07.2007. Aggrieved thereby, the appellant-writ petitioner preferred Special Appeal No.286 of 2018 and, in its order dated 18.07.2018, a Division Bench of this Court held that the challenge to the impugned order dated 26.07.2007 was highly belated.
Aggrieved thereby, the appellant-writ petitioner preferred Special Appeal No.286 of 2018 and, in its order dated 18.07.2018, a Division Bench of this Court held that the challenge to the impugned order dated 26.07.2007 was highly belated. While expressing its disinclination to interfere with the order under appeal, the Division Bench made it clear that, in case the appellant-writ petitioner was deprived of any other benefits which was otherwise due to him in law and which did not depend upon the impugned order, it was open to him to work out his remedies before the competent Court. 5. The appellant-writ petitioner again filed Writ Petition (S/S) No.3845 of 2018 seeking the very same reliefs which he had sought in the earlier Writ Petition. By the order under appeal, in Writ Petition (S/S) No.3845 of 2018 dated 28.05.2019, the learned Single Judge held that filing of a second Writ Petition, for the very same cause of action, was an abuse of the process of law; the order of the Division Bench only meant dues which were payable to the appellant-writ petitioner after the decision was rendered in Special Appeal No.286 of 2018 dated 18.07.2018, and not dues prior thereto; and, since the appellant-writ petitioner did not come with clean hands, he was not entitled to the relief sought for in the Writ Petition. The learned Single Judge further held that the order of the Division Bench, leaving it open to the appellant-writ petitioner to approach the appropriate forum, would necessitate the inference that a subsequent Writ Petition, for the same cause of action, is not maintainable; and, since this contention could not be accepted, the Writ Petition was liable to be dismissed. 6. While dismissing Writ Petition (S/S) No.402 of 2016 by his order dated 29.02.2016 on the ground of delay and laches, the learned Single Judge had merely examined the appellant-writ petitioner's challenge to the order dated 26.07.2007, and not with respect to any of the other reliefs he had sought for in the Writ Petition.
6. While dismissing Writ Petition (S/S) No.402 of 2016 by his order dated 29.02.2016 on the ground of delay and laches, the learned Single Judge had merely examined the appellant-writ petitioner's challenge to the order dated 26.07.2007, and not with respect to any of the other reliefs he had sought for in the Writ Petition. While affirming the order passed by the learned Single Judge, the Division Bench, by its order dated 18.07.2018 passed in Special Appeal No.286 of 2018, made it clear that it was open to the appellant-writ petitioner to avail his remedies before the competent Court, in case he was deprived of any other benefits which were otherwise due to him in law, and which did not depend upon the impugned order. 7. As is evident from Paragraph No.2 of the order in Special Appeal No.286 of 2018 dated 18.07.2018, the impugned order, which the Division Bench referred to, was the order dated 26.07.2007. Consequently, the appellant-writ petitioner was disentitled from claiming any benefit dependent on the impugned order dated 26.07.2007. The liberty granted by the Division Bench enabled him to work out his remedies before the competent Court with regards his claim for any other benefits, which were otherwise due to him in law, and which were not dependent on the order dated 26.07.2007. 8. The principle underline Explanation IV to Section 11 C.P.C, is that any matter which might or ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter constructively in issue such a suit. Since this provision has been made applicable to proceedings under Article 226 of the Constitution of India (Forward Construction Co. & Ors. vs. Prabhat Mandal (Regd.) Andheri & others, AIR 1986 SC 391 ), in case the order of the learned Single Judge, in Writ Petition (S/S) No.402 of 2016 dated 29.02.2016, had attained finality, then, even on matters which were available to be subjected to challenge in the said Writ Petition, and other claims though made were not dealt with by the learned Single Judge, the jurisdiction of this Court could not once again be invoked for the very same reliefs.
The fact, however, remains that the appellant-writ petitioner had preferred a Special Appeal against the order passed in Writ Petition (S/S) No.402 of 2016 dated 29.02.2016, and a Division Bench of this Court had, by its order in Special Appeal No.286 of 2018 dated 18.07.2018, granted the appellant-writ petitioner liberty to work out his remedies before the competent Court on claims which did not depend upon the impugned order dated 26.07.2007. 9. In so far as the reliefs sought for by the appellant-writ petitioner in Writ Petition (S/S.) No.3845 of 2018 is concerned, the learned Single Judge has rightly denied him relief to the extent he sought quashing of the order dated 26.07.2007. The learned Single Judge was, in our view, not justified in refusing to examine the other reliefs sought for by the appellant-writ petitioner, which were not dealt with in the order passed earlier in Writ Petition (S/S) No.402 of 2016 dated 29.02.2016. The learned Single Judge ought to have examined the Writ Petition, with regards the other reliefs sought for therein, in view of the liberty granted by the Division Bench in its order in Special Appeal No.286 of 2018 dated 18.07.2018. 10. The words "Competent Court", as referred to in the order of the Division Bench in Special Appeal No.286 of 2018 dated 18.07.2018, would also include this Court; and the appellant-writ petitioner was, therefore, entitled to avail his judicial remedies, under Article 226 of the Constitution of India, seeking reliefs which he had claimed was due to him in law, and which did not depend on the order dated 26.07.2007. 11. Mr. Sudhir Kumar, learned counsel for respondent nos.4 and 5, would submit that the other claims are also belated and are hit be laches. This contention has not been examined in the order under appeal. 12. Suffice it, while setting aside the order under appeal and restoring the Writ Petition to file, to make it clear that it is open to all the parties thereto to raise all such contentions, (including contentions regarding delay and laches), as are available to them in law. 13. The Special Appeal is, accordingly, disposed of. No costs.