Saurabh Lavania, J.

Heard Sri Som Kartik, learned counsel for the petitioner and Sri A K Chaturvedi, Senior Advocate assisted by Sri Ashwani Kumar Singh, learned counsel for the respondent-Bank.

2. By means of the present writ petition, the petitioner has challenged the order of dismissal dated 21.04.1980. The main relief sought by the petitioner in the present writ petition is quoted below for ready reference:-

"(A) Issue a writ in the nature of certiorari to quash the order of dismissal of the petition vide order dated 21.04.1980 passed by opposite party No. 2 on behalf of opposite party No. 1 and declare the same as illegal and void and is inoperative and that the petitioner be deemed to be continuing in service."

3. The relief has been sought broadly on the ground to the effect that the order of dismissal dated 21.04.1980 has been passed without giving the proper opportunity of hearing during the enquiry proceedings.

4. At very outset, a preliminary objection has been raised on the maintainability of the writ petition by Sri A K Chaturvedi, Senior Advocate appearing on behalf of the respondent/Bank.

5. In support of his preliminary objection, Sri A K Chaturvedi, learned Senior Advocate has submitted that order of dismissal dated 21.04.1980, challenged in the present writ petition, was earlier challenged by the petitioner in the Writ Petition No. 1177 (S/S) of 1980 and 29.04.1980, the writ petition was withdrawn by the petitioner with liberty to seek alternative remedy and present writ petition challenging the same order dated 21.04.1980 being second writ petition on the same subject and cause of action for the same relief is not maintainable. The order dated 29.04.1980 reads as under:-

"The counsel of the petitioner states that the petition may be permitted to be withdrawn as the petitioner intends to see alternative remedy. Hence, the petition stands withdrawn and dismissed "

6. In reply to the aforesaid preliminary objection, the counsel for the petitioner has submitted that after the withdrawal of the earlier Writ Petition No. 1177 (S/S) of 1980, the petitioner approached the Authorities and filed the appeal but no decision was taken on the said appeal and because of the same, he again approached this Hon'ble Court challenging the order of dismissal dated 21.04.1980 by means of the present writ petition.

7. The counsel for the petitioner has further submitted that the earlier writ petition was not disposed of/decided on merits and as such, the principle of res-judicata and constructive res-judicata would not apply and being so, the present writ petition for the reliefs sought, is maintainable.

8. In reply to the aforesaid, the submission of the counsel of the respondent-Bank is that the petitioner never filed the appeal before the Competent Authority and as per record of the writ petition, the petition filed the review application before the Punishing Authority (Annexure No. 18 to the writ petition).

9. He has further submitted that in fact, even the review application was also not filed before the authority concerned. In support of his contention the counsel appearing for Bank placed before this Court contents of Para 26 of the counter affidavit and Para 24 of the supplementary counter affidavit.

10. A perusal of contents of Para 26 and 24 reveals that, the averment of the respondent-Bank is to the effect that neither review application was filed nor any appeal was filed after order of this Court passed on 29.04.1980 in the earlier Writ Petition No. 1177 (S/S) of 1980. Averments made in Para 24 of the supplementary counter affidavit have not been denied by the petitioner by filing reply to the supplementary counter affidavit.

11. The rejoinder affidavit filed by the petitioner in reply to the counter affidavit is also appears to be vague on the issue of filing the appeal. It appears from the counter affidavit, rejoinder affidavit and supplementary counter affidavit that after dismissal of the writ petition as withdrawn, t