1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.509 OF 2008 IN WRIT PETITION NO.2033 OF 2007 Kuldeep Kumar Sethee .. Petitioner V/s Mr.R.S.Sharma, CMD, ONGC, & Ors .. Respondents Mr.Shrihari Aney, Senior Advocate with Mr.Nitin Jamdar for the Petitioner. Mr.Kuldeep Kumar Sethee, Petitioner-in-person present. Mr.S.U.Kamdar, Senior Advocate with Mr.N.Engineer and Mr.Aziz Khan i/by M/s.Divya Shah & Associate for Respondent Nos.1, 2, 3, 4, 5, 7, 15 & 18. Sm,t.S.V.Bharucha with Mr.O.A.Dubey for Respondent/Union of India. CORAM : P.B.MAJMUDAR & R.G.KETKAR, JJ. DATE : 24TH FEBRUARY, 2010 P.C. : 1. The petitioner by way of this Notice of Motion has prayed for certain interim reliefs in the pending writ petition No.2033 of 2007. The petitioner was serving at the relevant time on the post of Superintendent Engineer, Grade E in the Respondent Organisation. The petitioner was subjected th departmental proceedings, which resulted into removal of the petitioner from service. The petitioner was removed from service by order dated 20th March, 2007 but since in the earlier writ petition which was filed by the petitioner being Writ Petition No.1636 of 2005 the Division Bench of this Court by its order dated 17th January, 2006 passed an order that if any adverse order is passed the same should not be given effect to for a period of four weeks. It was given effect from 13th May 2007 2 after serving the said removal order on the petitioner on 13th April, 2007. The petitioner has challenged the removal order on various grounds and in the writ petition he has also challenged the enquiry proceedings. It is to be noted here that the writ petition filed by the petitioner is likely to be placed for final hearing. Since the petitioner is prosecuting this notice of motion as a party-in-person, we requested Senior Counsel Mr.Aney and learned Advocate Mr.Jamdar to assist the Court. They have accordingly argued this notice of motion. 2. In the present notice of motion, the petitioner has prayed for following reliefs: A The Hon ble Court may quash the Enquiries, Enquiry reports, “ ” ’ and consequential departmental orders including removal order, the order striking off the name of the petitioner from the rolls of ONGC, and departmental appeal rejection order; and hence reinstate the petitioner with continuity of service and full back wages with interest from the date of illegal removal to reinstatement, and consequential benefits. The pertaining period of absence should be treated as deemed to be on duty, requiring no leave to be taken by the petitioner for the period. Release all dues of the petitioner immediately. Main petition WP No.2033 of 2007 which is already admitted on 25.10.2008 should be heard only after joining by petitioner and only after release of all dues.” B Release all incentives held in the name of Enquiries, which “ ” could not be released in spite of filing Contempt of Court petition which was found premature at that stage. C Pray urgent orders for immediate repossession of the illegally “ ” and forcibly evicted accommodation which was not unauthorized. No penal rent should be charged and penal rent charged earlier must be refunded immediately. The gratuity of rupees three and half lakhs withheld in the name of the accommodation must be released immediately. This is without prejudice to filing of appeal by petitioner regarding accommodation which shall be filed soon. 3 D It is prayed to direct respondents to provide all information “ ” sought by petitioner as permitted by law immediately. E Interim compensation of rupees Fifty Lakhs as sought in the “ ” petition as well as interim compensation of Rupees ten thousand per day from the date of removal as sought in the petition. F Cost of this Notice of Motion. “ ” G Any other and further relief that this Hon ble Court may “ ” ’ deem fit and proper.” 3. During the course of hearing when a pointed question was asked to Mr.Aney as to how such interim reliefs can be granted at this stage in the notice of motion when the petition itself is fixed by this Court for final hearing. The learned Senior Counsel after taking instructions submitted that the petitioner is out of job and if he is given any monetary compensation by an interim order in the notice of motion, and ultimately if any order is passed either in his favour or against him, he can challenge the said order or can defend such order by engaging counsel. It is argued by Mr.Aney that at the time when this Court rejected the petitioner s earlier writ petition which was in connection ’ with the promotion, the protection was granted to the effect that if any adverse order is passed in the departmental proceedings the same should not be given effect to for a period of four weeks from the date of service of the said order on he petitioner.. Mr.Aney submitted that the removal order was not served at Mumbai where the petitioner resides but was served at the place where he was transferred i.e.Mehsana which is in 4 Gujrat St;ate. Mr.Aney submitted that since the earlier Division Bench had granted interim protection, this is a fit case in which this Court may pass interim mandatory order directing the Respondent to reinstate the petitioner in service pending the writ petition. 4. Learned Senior Counsel Mr.Kamdar on the other hand opposed this application/notice of motion on the ground that such relief cannot be granted in the notice of motion. According to him even earlier also such a prayer was made and the Division Bench of this Court by its order dated 25th September, 2008 disposed of the Notice of Motion No.413 of 2008 as withdrawn. It is submitted by Mr.Kamdar that the present Notice of Motion is not maintainable especially when there are no changed circumstances. Mr.Kamdar further submitted that in any case, the interim relief of such a nature cannot be granted as it may amount allowing of the writ petition, without the same being tried on merits. Mr.Kamdar further submitted that initially this Notice of Motion was also placed before the Division Bench and in this very Notice of Motion the Division Bench by its order dated 1st December, 2008 passed the following order: The petitioner has been removed from services. He has taken out “ the motion for various reliefs. Earlier also motion was taken out. By the present motion the learned counsel restricts the relief to payment of gratuity. There is no dispute that the petitioner is entitled to gratuity. The only issue is whether any penal rent can be adjusted in terms of any service rules against the gratuity due and payable. The Respondent to file reply. S.O.to 11th December, 2008. Copy be given in advance to the learned counsel for the petitioner” 5 5. Mr.Kamdar, learned Senior Counsel further submitted that the large amount is to be recovered from the petitioner towards different heads viz.Car Loan, Housing Loan, Computer Loan, Penal Rent etc., and therefore, there is no question of payment of gratuity. However, since the petitioner-in-person submitted that he is interested in the interim reliefs prayed for in the notice of motion, it is not necessary to examine the question of payment of gratuity in this notice of motion. Mr.Kamdar, learned Senior Counsel further submitted that the impugned order was served on the petitioner on 13th April, 2007 and it has been given effect from 14th May, 2007 i.e.after 30 days in view of the earlier direction given by the Court. 6. We have heard Mr.Aney, learned Senior Counsel for the petitioner and we have also heard petitioner-in-person and Mr.Kamdar, learned Senior Counsel for the Respondent. In our view, the interim relief as prayed for, cannot be granted, firstly because, granting of such relief may amount to allowing the main petition at this stage, without trying the same. In the writ petition, the petitioner has also prayed for compensation at the rate of two million dollars as well as other reliefs. At this stage, while deciding the notice of motion we are not expressing any opinion on this aspect. But in our view, whether the petitioner is entitled to reinstatement with consequential benefits is a question which is required to be adjudicated in the main writ petition itself and without deciding the writ 6 petition, interim reliefs as prayed for in the notice of motion cannot be granted. It is not possible for us to accept the submissions made by learned Senior Counsel Mr.Aney that if reinstatement is given with back wages at this stage, the petitioner can defend future proceedings by getting the monetary benefits. This Court cannot pass any such order in the notice of motion. Filing of such notice of motion is nothing but an abuse of the process of law and wasting of time of the Court. Since the petitioner is appearing in person we have heard him as well as Mr.Aney, learned Senior Counsel who was requested to appear and represent the case of the petitioner. In our view, this notice of motion is thoroughly mis-conceived. It is required to be noted that the writ petition which is of the year 2007 is admitted long back, and no interim reliefs have been granted during all this period. Even in the departmental appeal which was filed by the petitioner against his removal order, no interim was granted in the same. Considering these aspects this notice of motion is rejected. 7. The Writ Petition No.2033 of 2007 may be placed for final hearing so that the main issue involved in the petition can be decided on its own merits. 8. We express our gratitude to learned Senior Counsel Mr.Aney and learned Advocate Mr.Jamdar who have spent their valuable time in assisting the Court. At the request of learned Senior Counsel Mr.Aney and learned 7 Advocate Mr.Jamdar, they are permitted to be discharged from further proceedings of this matter. 9. Notice of motion is disposed of accordingly. It is clarified that the observations made in this notice of motion are only for the purpose of deciding the present notice of motion. These observations will have no bearing so far as the main writ petition is concerned, and the writ petition will be decided on its own merits. (R.G.KETKAR, J.) (P.B.MAJMUDAR, J.)