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KRISHNA DEO PANDEY versus UNION OF INDIA AND OTHERS

High Court of Judicature at Allahabad

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Krishna Deo Pandey v. Union Of India And Others - WRIT - A No. 21741 of 2003 [2003] RD-AH 146 (19 May 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 21682 Of 2003

Rakesh Kumar Agarwal -----           Petitioner

Versus

State Bank of India & anr. -----        Respondents    

    --------------

Hon'ble Dr.B.S.Chauhan,J.

Hon'ble Ghanshyam Dass, J.

This writ petition has been filed for issuing a direction that the Grievance Committee respondent no.2 should be directed to decide the petitioner's Grievance Petition dated 20.10.2002.

Facts and circumstances giving rise to this case are that petitioner has been posted as Assistant Manager, State Bank of India and being aggrieved by the harassment he made a grievance petition on 12.9.2002  to the initial authority in accordance with the statutory provisions. As in view of the provisions of Chapter 15 of the Codified Reference Book on Staff matters, the same was not considered within stipulated period. of 14 days, petitioner had to approach the Grievance Committee but the same has not yet been decided, and hence this petition.

Learned counsel appearing for the respondents has raised preliminary objection regarding the maintainability of the writ petition contending that for the similar relief petitioner had previously filed Writ Petition No. 144 of 2003 wherein he had challenged the departmental enquiry in pursuance of the charge-sheet dated 9.3.2002. The said writ petition was disposed of by this Court vide order dated 8.1.2003 with the direction to conclude the enquiry within three months.

Learned counsel has submitted that as the subject matter of this writ petition relating to petitioner's grievance had not been considered at all in the earlier writ petition, the petitioner cannot be non suited on such technical ground and petition is maintainable by all means.

We have considered the rival submissions made by the learned counsel for the parties on preliminary objection.

Admittedly, petitioner had approached this Court earlier and his petition was disposed of vide order dated 9.3.2002. Even on that date petitioner's grievance, which has been agitated in this petition, was very much there in existence. If petitioner has raised this issue in the earlier petition and did not make any submission thereon then this Court had no occasion to pass the same order, and the petition cannot be entertain. If the petitioner has not raised this issue therein, Court had no opportunity to consider the same. The petition is not maintainable even in that situation.

The issue of filing  successive  writ petition  has  been  considered  by  the  Hon'ble Supreme Court  time and again and held that  even if the earlier  writ petition has been  dismissed as withdrawn, Public Policy which is reflected in the principle  enshrined  in  Order   23  rule  1 C.P.C., mandates  that successive writ petition be not entertained  for  the   same  relief. (Vide M/s. Sarguja   Transport  Service    Versus   State Transport  Appellate  Tribunal, AIR 1987  SC  88; Ashok Kumar  Versus Delhi Development  Authority, 1994 (6)  SCC 97;  and Khacher Singh Versus State of U.P.  and others, AIR 1995 All.  332).

Even if a party does not pray for  the relief in  the  earlier writ petition,  which  he ought to have claimed in the earlier petition, he cannot file  a successive writ petition  claiming that relief,  as  it  would  be  barred  by the principle  of constructive res judicata enshrined in Explanation  IV to Section 11 and Order 2 rule 2 C.P.C. as has been explained, in  unambiguous and crystal clear language by the Hon'ble Supreme Court in  Commissioner of Income Tax Versus  T.P. Kumaran,  1996 (10) SCC 561;  Union of India  and others Versus  Punni Lal, 1996 (11) SCC 112;  and D.  Gudasji  &  Co.  Versus State of Mysore,  AIR1975 SC 813.

Similar view has been reiterated by  the Hon'ble Supreme Court  in   Avinash  Nagra  Vs. Navodaya  Vidhyalaya Samiti, (1997) 2 SCC 534 and by the other Court  in Uda Ram Vs.  Central State Farm & ors., AIR  1998  Raj.   186; and  M/s. Rajasthan  Art  Emporium, Jodhpur Vs.   Rajasthan Stat Industrial and Investment Corporation & ors, AIR 1998 Raj. 277.

In  M/s. D. Cawasji & Co. etc. Vs. State of  Mysore  &  Anr., AIR 1975 SC  813,  the Hon'ble Supreme Court observed as under:-

"Be that as it may, in the earlier writ petitions, the appellants did not pray for refund of the amounts paid by way of cess for the years 1951-52 to 1965-66 and they gave no  reasons before  the  High Court  in  these writ petitions why  they did not make the prayer for refund of the amounts paid   during   the  years   in question. Avoiding multiplicity of unnecessary legal proceedings should be an aim of the Courts.   Therefore, the appellants could not be allowed to split up their claims for refund and file writ petitions in this piecemeal fashion.  If the appellants could have, but did  not, without  any  legal justification,  claim refund  of  the amounts paid  during  the years  in  question, in the earlier  writ petitions,  we  see  no  reason  why  the appellants should be allowed to claim the amounts  by filing writ petitions  again. In the circumstances of this case, having regard to the conduct of the appellants in not claiming these amounts in the earlier writ petitions without any justification,  we do not think, we would be justified in interfering  with  the discretion exercised by the High Court in dismissing  the writ petitions which were filed only for the purpose of  obtaining the  refund....in view of the above,  the petition is liable to be dismissed as not maintainable and it is dismissed accordingly...."

Similarly, in State of U.P. & Anr. Vs. Labh Chand, AIR 1994 SC 754, the Hon'ble Supreme Court has held as under:-

"This reason is not concerned with the discretionary power of   the Judge or Judges of the High Court under Article 226 of the Constitution to entertain a second writ petition whose earlier writ petition was dismissed on the ground of non-exhaustion of alternative remedy but of such a Judge or Judges having not followed the well established salutory rule of judicial practice and procedure that an order of a Single Judge Bench or a Larger Bench of the same High Court dismissing the writ petition either  on the ground of laches or non-exhaustion of alternative  remedy as well shall not  be bye-passed  by  a Single Judge  Bench  or Judges  of  a  Larger   Bench  except  in exercise  of  review or appellate  powers possessed  by it.....  But as the learned Single Judge constituting a Single Judge Bench of the same Court, who has in  the purported  exercise of jurisdiction under Article 226 of the    Constitution bye-passed  the order of dismissal of the writ petition made by a Division Bench by entertaining a second writ petition filed by  the  respondent  in  respect  of  the subject  matter  which  was  the  subject matter  of the earlier writ petition, the question is, whether the well established salutary  rule  of judicial practice  and procedure  governing such matters  permit the  learned Single Judge to bye-pass the order of the Division Bench on the excuse that  High  Court has jurisdiction  under Article   226  of   the  Constitution  to entertain  a  second writ petition  since the  earlier  writ petition of  the  same person  had been dismissed on the  ground of non-availing of alternative remedy and not  on merits....  Second writ petition cannot be so entertained, not because the learned Single Judge had no jurisdiction to   entertain the   same, but because entertaining   of such a second   writ petition would render the order of the same Court dismissing the earlier writ petition, redundant and nugatory although not reviewed by it in exercise of its recognized power.  Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another Single Judge or a Division Bench of the same Court, it would encourage an unsuccessful writ petitioner to go on filing writ petitions after writ petition in the same matter, in the same High Court and for it brought up for consideration before one Judge after another.  Such a thing, if is allowed to happen, it would result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any Bench of such Court refusing to entertain a writ petition could be ignored by him with impugnity and the relief sought in the  same  matter by filing a fresh  writ petition. This would   only  lead  to introduction  of disorder, confusion  and chaos   relating  to   exercise  of  writ jurisdiction by Judges of the High Court, for  there  could be no finality  for  an order  of the Court refusing to entertain a  writ petition.  It is why the rule of judicial practice and procedure that a second   writ petition shall  not   be entertained  by  the  High Court  on  the subject  matter respecting that the  writ petition of the same person was dismissed by  the  same Court even if the order  of such  dismissal  was in limine, be it  on the  ground of laches or on the ground of non-exhaustion  of alternative remedy, has come  to  be  accepted  and  followed  as salutory   rule  in   exercise  of   writ jurisdiction  of  the  Court."  (Emphasis added).

In Burn & Co. Vs. Their Employees, AIR 1954 SC 38, the Hon'ble Apex Court has held as under:-

"That   would   be    contrary   to   the well-recognised principle that a decision once rendered by a competent authority on a  matter  in issue between  the  parties after  a  full  enquiry   should  not  be permitted  to  be re-agitated.  It is  on this  principle  that  the  rule  of  res judicata  enacted  in Section  11,  Civil P.C.  is based.  That section is, no doubt in terms  in application to  the  present matter,  but the principle underlying it, expressed  in  the  maxim  "interest  rei publicae ut sit finis limium", is founded on sound  public  policy   and is of universal  application. (Vide  Broom's Legal  Maxims, Tenth Edition, page 218). 'The  rule  of res judicata is  dictated' observed  Sir  Lawrence Jenkins C.J. in Sheoparasan  Singh Vs.  Ramnandan  Prasad Narayan Singh, 43 Ind.  App.  91:  ILR 43 Cal.   694:   (AIR 1916 PC 78) (C), by  a wisdom  which is for all time.' And there are good reasons why  this  principle should  be  applicable to decisions of Industrial Tribunals also."

Therefore, in view of the above referred judgments, it is abundantly clear that even if the provisions of the Code of Civil Procedure are not applicable   in   writ    jurisdiction, the principle  enshrined  therein can be resorted  to for the reason  that the principles, on which the Code of Civil  Procedure is based, are founded on public policy   and, therefore,  require   to   be extended  in  the interest of  administration  of justice.   Any relief not claimed in the earlier writ petition should be deemed to have been abandoned by the petitioner to the extent of the cause of  action  claimed in the subsequent  writ petition and in order to restrain the person from abusing the  process of the Court, such an order/ course requires not only to be resorted to but to be enforced.

In  Dr.   Buddi  Kota  Subbarao  Vs.   K Parasaran, AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-                    

"No  litigant  has a right  to  unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes.  However, access to  justice  should not be misused as a licence to file    misconceived   and frivolous petitions."

Similar view has been reiterated by the Supreme Court in K.K.  Modi  Vs.   K.N. Modi, (1998)  3 SCC 573.                                        

In Tamil Nadu Electricity Board & Anr. Vs. N. Rajureddiar & Anr. AIR 1997 SC 1005 the Hon'ble Supreme Court held that filing successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice. Such a litigant must be dealt with a very heavy hand.

In  Sabia Khan & ors.  Vs.  State of U.P. & ors., (1999)  1 SCC 271, the Hon'ble Apex Court held that  filing  totally misconceived  petition amounts to  abuse of the process of the Court and such litigant  is  not required to be dealt  with lightly.

In  Abdul Rahman Vs.  Prasoni Bai & Anr., 2003 AIR  SCW 14, the Hon'ble Supreme Court  held that wherever  the Court comes to the  conclusion that the  process  of the Court is being  abused, the Court  would  be  justified  in  refusing  to proceed further   and  refuse   the  party  from pursuing the remedy in law.

Thus, we hold that filing of the successive petition is not permissible and approaching this Court again amounts to abuse of the process of the Court.

Petition is dismissed as we are not inclined to interfere without examining the issue on merit.

19.5.2003

PKB/AKSI


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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