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2015 Supreme(HP) 1009
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mansoor Ahmad Mir, Dharam Chand Chaudhary, JJ.
Sunder Lal - Appellant
Versus
Himachal Pradesh State Forest Corporation and others - Respondents
LPA No. 374 of 2012
Decided on : 3.9.2015
Advocate Appeared:
For the appellant:Mr. Kunal Verma, Advocate.
For the respondents:Mr. Pranay Pratap Singh, Advocate.
The withdrawal of a writ petition without reserving any liberty to file fresh should be extended to the cases of withdrawal of writ petition in the interest of administration of justice, not on the ground of res-judicata but on the ground of public policy, and if the withdrawal of the previous petition was bonafide, the subsequent petition is not barred.
Headnote:
Withdrawal - Employment Dispute - AIR 1987 Supreme Court 88, AIR 2008 Supreme Court 946 - The court discussed the withdrawal of a writ petition without reserving any liberty to file fresh and held that in the interest of administration of justice, the same should be extended to the cases of withdrawal of writ petition, may not be on the ground of res-judicata but on the ground of public policy. The court also distinguished the decision and held that if the withdrawal of the previous petition was not tainted with any malice or for extraneous reasons and rather bonafide, the subsequent petition is not barred.
Fact of the Case:
The appellant, a Forest Guard, was found to have failed in the discharge of his duties and caused financial loss to the respondent-Corporation. A penalty was imposed on him, and he filed a writ petition challenging the penalty. Later, he withdrew the writ petition to get his withheld benefits released.
Finding of the Court:
The court found that the withdrawal of the previous writ petition was bonafide and not tainted with malice or bench hunting. The court held that the appellant was entitled to the benefit of a judgment in a similar case and directed the respondent-Corporation to extend the benefit and refund the penalty amount to the appellant.
Issues: 1. Whether withdrawal of the previous writ petition without seeking liberty to file fresh writ bars the institution of a subsequent writ petition? 2. Whether the appellant is entitled to the same relief as granted in a similar case?
Ratio Decidendi: The court held that the withdrawal of a writ petition without reserving any liberty to file fresh should be extended to the cases of withdrawal of writ petition in the interest of administration of justice, not on the ground of res-judicata but on the ground of public policy. The court also emphasized that if the withdrawal of the previous petition was bonafide, the subsequent petition is not barred.
Final Decision: The appeal succeeded, and the court directed the respondent-Corporation to extend the benefit of a judgment in a similar case to the appellant and refund the penalty amount to him.
Dharam Chand Chaudhary, Judge
Challenge herein is to the judgment dated 25th June, 2012 passed by learned Single Judge in CWP No. 309 of 2012, whereby while taking note of the dismissal of earlier writ petition, CWP(T) No. 11752 of 2008, filed by the appellant (hereinafter referred to as the ‘writ petitioner’) on the same cause of action and on similar grounds, as withdrawn and without reserving any liberty to file fresh writ petition, has dismissed the same.
2. The writ-petitioner was working as Forest Guard in respondent No. 1-Corporation and retired as such from Forest Working Unit, Rohroo under forest Working Division, Sawra, District Shimla. Being Incharge of Private Sale Lot, Chuck Sheeladesh, Tehsil Rohroo during the period from 1995 to January, 2000, he along with his superiors i.e. Mast Ram Kashyap, Assistant Manager and Tarveej Kumar, B.O. was found to have failed in the discharge of his duties sincerely and honestly and thereby caused huge financial loss to respondent No.1-Corporation. Therefore, departmental inquiry was ordered to be initiated against him and also aforesaid S/Shri Mast Ram and Tarveej Kumar. They were served with common charge-sheet. On the conclusion of the inquiry, the Inquiry Officer, however, exonerated all of them from the charges framed against each of them. The disciplinary authority though disagreed with the findings recorded by the Inquiry Officer, however, without recording tentative reasons and proposed to impose penalty of Rs.53,709/- upon each of them. Their version on the penalty so proposed to be imposed upon them was sought and after taking the same on record, the penalty was imposed vide office order dated 22.12.2004, Annexure P-8. The writ-petitioner had assailed the penalty so imposed upon him by filing Original Application in the H.P. State Administrative Tribunal, which later on came to be transferred to this Court and registered as CWP(T) No. 11752/08. Sh. Tarveej Kumar Sharma aforesaid had also assailed the penalty so imposed upon him vide order, Annexure P-8 in the H.P. State Administrative Tribunal and the same was registered as CWP(T) No. 11751 of 2008. It appears that on account of disciplinary proceedings initiated against the writ petitioner and the pendency of CWP(T) No. 11752/08, proficiency step-up/increment as admissible to him under Assured Career Progression Scheme was withheld by respondent No. 1-Corporation. Therefore, the writ-petitioner with a view to get the same released in his favour decided to withdraw the writ petition and submitted application, Annexure R-2 to the reply filed in the writ petition to the competent authority i.e. Director (South) Himachal Pradesh State Forest Corporation, Shimla, the 2nd respondent submitting therein that amount of penalty i.e. Rs.53,709/- stands deposited in the office of 3rd respondent on 22.09.2010 and that since learned counsel representing him in the pending writ petition was out of station, therefore, on his arrival at Shimla, he will withdraw the writ petition also and produce the copy of the order. Along-with Annexure R-2, he also furnished receipt Annexure R-2 (Colly.) as proof qua deposit of Rs.53,709/- in the office of 3rd respondent. On his depositing the amount in question and also having given undertaking to withdraw the writ petition, the respondent-Corporation had allowed him to withdraw the due and admissible benefits under the Assured Career Progression Scheme, as is apparent from the perusal of memo dated 18.03.2011, Annexure P-1(Colly.) to the writ petition. Later on the writ petition (CWP(T) No.11752/08) was dismissed as withdrawn vide order dated 15.12.2010, Annexure P-10/R-1 to the writ petition/reply filed thereto.
3. The writ petition filed by Sh. Tarveej Kumar aforesaid, a similarly situated person on the same cause of action and with similar grounds, has been allowed by this Court vide judgment dated 23.12.2010, Annexure P-9 to the writ petition. The petitioner also seeks similar benefit
