1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2446 OF 2008 Smt. Nilima Wd/o Anil Mishra ) aged about 44 years, Occ.: Service (Under ) Suspension) residing of Shiv Kutir, E-4 ) Cadel Road, Shivaji Park, Dadar (W) ) Mumbai. ).. PETITIONER VERSUS 1) Engg. Export Promotion Council ) a company registered under the ) Companies Act, 1956 and a Company ) Limited by Guarantee by Government ) of India, carrying on its activities at ) International Trade Facilitation Centre ) 1st Floor, Vanijya Bhavan, 1/1 ) Wood Street, Kolkata-700 016 ) Through its Executive Director ) Shri R. Maitra ) 2) The Committee of Administration Engg ) Export Promotion Council ) a Company registered under the ) Companies Act, 1956 and a Company ) Limited by Guarantee by Government ) of India, carrying on its activities at ) International Trade Facilitation Centre ) 1st Floor, Vanijya Bhavan, 1/1 ) Wood Street, Kolkata 700 016 ) Through its Chairman Shri Rakesh Shah ) 2 3) Shri Sushil Kumar Karmarkar ) Aged adult, Occ.: Advocate ) Enquiry Officer EEPC, Sabitri Abasan ) Ground Floor, Kaikhali, Kolkata 700052 ).. RESPONDENTS Mr A P Wachasundar for L.J. Law for the Petitioner. Mr P J Thorat a/w Mr Luckyraj Indorkar i/b Hariani & Co. for the Respondents. CORAM : SWATANTER KUMAR, C.J. AND S. A. BOBDE, J. JUDGMENT RESERVED ON : 23RD OCTOBER 2008 JUDGMENT PRONOUNCED ON : 27TH NOVEMBER 2008 JUDGMENT (PER SWATANTER KUMAR, C.J.) In this Petition under Article 226 of the Constitution of India, the Petitioner has prayed for issuance of appropriate writ for quashing and setting aside the order of suspension dated 29th March 2005, Exhibit “B” to the Petition, charge sheet dated 28th April 2005, Exhibit “C” to the Petition, the order communicated on 11th August 2008, Exhibit “D” passed by the Committee of Administration and the inquiry proceedings initiated by the Department against the Petitioner 3 on the basis that the charge sheet being violative of principles of natural justice and contrary to the law. The Petitioner has also prayed for grant of interim reliefs during the pendency of the Writ Petition. 2. The Petition came up for admission after, notice to the other side, and with the consent of the parties, the Petition itself was taken up for final disposal. Arguments were heard on 23rd and 24th September 2008 where after the case was reserved for judgment. 3. It is not necessary for us to notice the facts in greater detail suffice it to note that the Petitioner claims that she was appointed as Management Trainee in the Engineering Export Promotion Council (hereinafter referred to as “the Council”). During her service, she was sent abroad on deputation and given promotion. She was promoted as Regional Manager and her post was upgraded to that of Joint Director in October 2002 where she worked till she was suspended vide order dated 29th March 2005. A charge sheet was served upon her on 28th April 2005. The article of charges were stated in the charge sheet. It was stated that by misleading and 4 making incorrect declaration regarding the real name of her mother to the Council and without declaring the personal interest on account of her mother being owner of Flat No.5, Shivsagar, 19, Worli Sea Face, Mumbai 400 025, entered into a lease agreement which was unfair to the interests of the Council. It was also stated that she had deliberately and intentionally concealed the fact to the Council that the said flat which was occupied by Council since 1971 was sold and transferred by the original owner to her mother on her instance and she had misused her position as Regional Manager and issued the renewal notice to have a personal gain. On these articles, she was served with the show cause notice and she was expected to reply to the said charge sheet within seven days. She denied the article of charges and submitted a detailed reply on 2nd February 2006. In furtherance, an inquiry was initiated and the said inquiry is pending till date. According to the Council, the Petitioner is not co-operating in completion of the departmental inquiry and has been filing cases after cases though unsuccessful. On the contrary, according to the Petitioner, she was compelled to approach the Court because the Respondents were acting unfairly and contrary to law in the 5 departmental inquiry and even in other ancillary matters. According to her, the order of suspension was totally mala fide, arbitrary and impermissible. 4. The Petitioner had also filed Writ Petition before this Court being Writ Petition No.2014 of 2007 which was disposed of vide its order dated 1st July 2008, which reads as under :- “1. After some arguments, the learned Counsel appearing for the parties, upon instructions from their respective clients, jointly prayed that this Writ Petition could be disposed of by consented order. The agreed terms are :- (a) The petitioner herein will be entitled to file an appeal in accordance with Rule 54 of the relevant Rules within two weeks from today. (b) The competent appellate authority shall decide the said appeal after hearing the petitioner or her representative within four weeks thereafter. (c) For a period of six weeks from today, the departmental inquiry shall not proceed any further. (d) After completion of the said period, the departmental inquiry shall commence if so directed by the appellate authority in accordance with law and will be completed within three months thereafter. The petitioner herein, in that event, 6 shall fully co-operate in the progress of the departmental inquiry and will not ask for any unnecessary adjournments. (e) The petitioner will be at liberty to challenge the order of the appellate authority as well as the order in departmental proceedings in accordance with law. (f) The order passed upon conclusion of the departmental inquiry, if adverse to the interest of the petitioner, will not be given effect to for a period of two weeks. 2. The above terms are just, fair and proper. We pass the order in terms of the agreement between the parties. Writ Petition is accordingly disposed of with no order as to costs.” 5. In furtherance to the said order, the appeal filed by the Petitioner before the Competent Authority was taken up for hearing by the Committee of Administration. Vide letter dated 11th August 2008 the order passed by the Committee of Administration, the Appellate Committee, under Section 54(1) of the EEPC Service Rules dismissing the appeal and the order of suspension was not being revoked by the Appellate Authority, was forwarded to the Petitioner. Challenging the legality and correctness of the said order communicated on dated 11th August 2008, the principal contention 7 raised by the Petitioner is that the Appellant Authority consists of 13 persons, but only six members heard the Appeal and have passed the impugned order. As such, the Petitioner has suffered serious prejudice and the said order is not tenable as having not been heard by a competent authority. 6. As is evident from the afore-noticed facts, all the events and the orders passed by the authorities except the order communicated on 11th August 2008 are prior in point of time when the Petitioner filed Writ Petition No.2014 of 2007. The order of suspension and charge sheet served upon the Petitioner had been duly acted upon and the departmental inquiry had been in progress for quite some time. According to the Respondents, the gravity of the charge against the Petitioner is demonstrated by the fact that she executed the agreement without disclosing her true interest in the property and did not follow up the Court proceedings properly. The judgment delivered by the Competent Authority under the Rent Act in Case No. 13 of 2005 was rendered against the Council and the Council was directed to hand over the vacant and peaceful 8 possession of Flat No.5, Shivsagar, Shree Shiv Sagar Co-operative Housing Society Ltd., Worli Sea Face, Mumbai to the mother of the Petitioner. The challenge to the order of suspension, charge sheet and other orders passed prior to the passing of the order by the Appellate Authority were available to the Petitioner when the Petitioner filed Writ Petition No. 2014 of 2007. In that Writ Petition, the Petitioner had made prayers with regard to withdrawal of the order of suspension and the charge sheet as well as to stay the further continuation of the departmental proceedings. A prayer was also made that the grievance of the Petitioner should be redressed by the Respondents as a condition precedent to the continuation of the departmental inquiry. As already noticed, this Writ Petition was disposed of by an agreed order dated 1st July 2008. In other words, the Petitioner had given up the challenge and the Court did not grant any relief to the Petitioner except that she should file an appeal under Rule 54 of the relevant Rules and it was to be dealt with by the Appellate Authority in accordance with law. Thus, none of these reliefs can be claimed by the Petitioner in the present Writ Petition in view of the applied principles of Order 2 Rule 2 of the Code of Civil 9 Procedure. In fact, they would be deemed to have been declined and thus present claims would even be barred by the principle of constructive res judicata as well. Whatever reliefs which were available to the Petitioner and which she failed to claim while filing Writ Petition No. 2014 of 2007, cannot be claimed now in a subsequent Writ Petition. It is obligatory upon the part of the Petitioner to claim full relief, in relation to the complete cause of action, available to the applicant at the relevant time. It is a settled principle of law that where the party can claim several reliefs in relation to the set cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. Reference can be made to the judgments of the Supreme Court in the case of Deva Ram and another vs Ishwar Chand and another, (1995) 6SCC 733 and in the case of Sidramappa vs Rajashetty and others, 1970 (1) SCC 186. The order of the Division Bench dated 1st July 2008 thus is a complete answer to the claim raised by the Petitioner in relation to quashing of charge sheet and stay of the departmental inquiry. 7. The Petitioner, firstly, had filed Writ Petition No. 2014 of 10 2007 whereafter the order already passed by the Appellate Authority was communicated vide letter dated 11th August 2008. Then the Petitioner filed Writ Petition No. 1837 of 2008 claiming that her appeal should be heard as per Rule 54 by a properly constituted Committee. While disposing of this Writ Petition, the Court vide its order dated 10th September 2008, directed the Respondent Council to expeditiously complete the departmental inquiry and in any case by 15th November 2008 and the Petitioner was directed to co-operate. The Petitioner rather than co-operating in the departmental inquiry, filed the present Writ Petition. Of course, in the order dated 10th September 2008, it was observed that the Counsel for the Petitioner had stated that as they had received the order passed by the Appellate Authority, they will like to file independent Writ Petition. This entire conduct of the Petitioner shows that the Petitioner is hardly willing to join the departmental proceedings and is obstructing the progress of the departmental proceedings rather than co-operating. Repetitive litigation by a party on the same cause of action is impermissible. The Petitioner cannot be permitted to agitate and re-agitate the same issues just by filing another Petition at different stages of the 11 departmental inquiry. Even otherwise the Courts would be quite reluctant to interfere in the departmental inquiry and particularly at the initial stage in relation to the quashing of the charge sheet. Unless and until the charge sheet was so absurd that no prudent person could anticipate that the delinquent official could be tried for such a charge, the Courts would not venture into the merits or demerits of the charge sheet. The charges set out in the impugned charge sheet prima facie makes out a case for a departmental inquiry. In fact the departmental inquiry has already commenced and is in progress. Laying down certain limitations for the Courts to interfere in the departmental inquiries at the initial stages, the Supreme Court in the case of Union of India and another vs Kunishetty Satyanarayan, (2006) 12 SCC 28, held as under :- “12. In our opinion, the High Court was not justified in allowing the writ petition. 13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge- sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v Ramesh Kumar Singh, (1996) 1 SCC 327, Special Director v Mohd. Ghulam Ghouse, (2004) 3 SCC 440, Ulagappa v Divisional Commr., Mysore, (2001) 10 12 SCC 639, State of U P v Brahm Datt Sharma, (1987) 2 SCC 179. 14. The reason why ordinarily a writ petition should not be entertained against a mere show- cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show- cause notice or after holding an enquiry the authority concerned may drop the procedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such a discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.” 8. The learned Counsel appearing for the Petitioner relied upon the judgment of the Supreme Court in the case of Smt.Somawanti and others vs The State of Punjab and others, AIR 1963 SC 151, and argued that there has to be conclusive evidence in 13 support of the charges and evidence includes all statements which the Court permits or requires to be made but there is no evidence to support the charge. Firstly, we may notice that this judgment has no connection to the facts of the present case as in the said case the Supreme Court was concerned with the provisions of the Land Acquisition Act, 1894 and was concerned with the expression “conclusive proof” and “conclusive evidence” as used in Section 4 of the Indian Evidence Act, 1872 for determining the public purpose and finality of the declaration under Section 6 of the Land Acquisition Act. We are afraid that this judgment is of no help to the Petitioner in the present case. 9. Coming to the last argument raised in the present case that the order passed by the Appellate Authority is unsustainable as all the members of the Appellate Authority were not present and no deliberations took place between the members before passing the impugned order. It is also argued that the Appellate Authority has taken into consideration irrelevant factors and relevant factors have not been taken into consideration. Thus, the order is vitiated in view 14 of the law stated by the Supreme Court in the case of Indian Railway Construction Co. Ltd. vs Ajay Kumar, AIR 2003 SC 1843. This argument is misplaced as it is based upon the misconstruction of relevant Rules and Articles of Association of the Respondent Council. Under Rule 54(1) of the Service Rules of the Council, an appeal against the order of suspension under Rule 43 shall lie to the Appellate Authority. The appeal is to be heard and decided by the Appellate Authority which may pass order confirming, varying, reducing or setting aside the order passed by the Competent Authority. In terms of the Articles of Association of the Council, three members form the coram of the Committee constituting the Appellate Authority. The impugned order communicated by the letter dated 11th August 2008 had been signed by six members including the Chairman of the Council and thus it satisfies the requirement of law as the order has been passed by a Committee where more than three members were present. As such, this contention of the Petitioner is without any merit. 10. It is noteworthy that the order communicated vide letter 15 dated 11th August 2008 is a detailed order and has considered all the contentions which were raised by the Petitioner. While deciding the correctness or otherwise of the order of suspension dated 29th March 2005, the Council was not expected to deal with the merits of the articles of charge. It was required to examine the matter only from the point of view whether the order of the disciplinary authority placing the Petitioner under suspension during the departmental inquiry was just, fair and legal. All these aspects have been squarely dealt with by the Appellate Authority and as such they call for no interference. We are unable to accept the contention that the Appellate Authority has ignored the relevant material and has taken into consideration irrelevant materials. 16 11. Thus, for the above stated reasons, we find no merit in the Writ Petition and the same is dismissed leaving the parties to bear their own costs. We reiterate the directions issued by the Division Bench in Writ Petition No.1837 of 2008 dated 10th September 2008 that the Respondent Council shall conclude the proceedings expeditiously as the date indicated by the Division Bench has already expired. CHIEF JUSTICE (S. A. BOBDE) July08/judgment/wp2446-08final.sxw