I ;lt \ ^^- IN THE HIGti COUKT OF 3UDICATURE AT BILASPURr CHHATTISGARH WRIT PETITION Nff: ^75 OF2003 PETmONER Versus RESPONDEWTS ,«^^d?- ^^y 1; R, N. Singh; aged about 56 years, S/o Shri H, R. ^ngh,worktnjg as Commerci^t Tax Inspectpr, 0/p Commercial Tax Officer, Bitaspur Circle-1, Bilaspur (Chhattisgarh) State of Chhattisgarh throygh the Secretary, Departmentof Commerciat Tax,DKS Bhawan, Mantralaya,Raipur CChhattisgarh) ;ommissioner, Commereial Tax, Raipur (Chhattisgarh) State of MadtTya PFadesh through .the;Pif'i;nci|:)al:^sgi-^ar^,/:•,'::.;'.^s:'^;:,: :[>epai''i!B"tei"i|:Qf/^Ew^Wefs$i!g^at,^ •VaNSW®Havwah,;B:Bi@lpa|IOl(|?!l:>i;^;^ Con-in-UssiQner, Con'iiTieFGitl ^Tax, Inrfore (Madhya Pradesh) 3. 4. Me^PETITl6NtWDERA<a-ICLE226/22tEaiB^E ^ CONSTBnniON OF INDIA •'x-i .>.o / <•»• HIGH COURTOFGHHATTISGrARHATBILASPUR WritPfetition No. 579 of2003 Petitioner : R.N. Singh Versus RespQDdents State ofChhattisgarh &ofhera ASX ^^•1 ^ Postfi»rordcron-^!'"<]May,2006 Sd/- Satish I^. Agnihotri Judge l<1j •.^!' •<<5^"' ' \: HIGH COURTQF CHHATTISGARH AT BILASPUR WritPetition No. 579 of 2003 Petitioner : R.N. Siagh Versus — Respondents State of Chhattisgarh & others Shigfe Bench: HonTile Mr. Justice Satish K. AplUlotri. Shri Prafull Bharat, counsel for the Petitioner. Sint. Anju Ahuja, Deputy GovemDient Advocate for fhe resDondents No. 1 and 2. None for the respondents No. 3 aad 4. ORDER ( ^^May, 2006) The present writ petition filed iinder Article 226/227 of the Constitution of Iiidia impugns fhe show cause notice dated 8.10.1996 (Annexure P/1) aad further the petitioner seeks a writ of maadamus again.st the respondentsjto consider his case for gxant ofpromotion to fhc post of fhe Commercial Tax Of&cer fmm. fh.e date fhe petitioner's iuniors have been proinoted, together wifh conseauential benefite like seniority, back wages ete. along wifh iaterest at fhe ratc of 18% per annum. Thus petitionwas jBlcd on 6.2.2003. The admitted facts ia nutsheU are fhat, the petitiouer was appoiated as Sales Tax Inspector by order dated 21,1.1972. In 1976 a departmental enquiry was inltiated against him on certaia acts of misconduct. Oa 6,6.80 fhe dlsciplinary •:".^y:^"?c.^^ 6. \' aufhority passed an order stoppiag four increiaeate vrith cuinulati.ve effect. The petitioner filed aa appeal to fhe State Govemiaent which. is fhe appeUate aufhorily. The State Goverruneirt aUowed fhe appeal, set aside the pen.alty and only gave a waniiag to fhe petitioner. On 23.10.80 (Annexure P/4) a seconddepartmental enquuy on difiFerent chai^es of miscoiiduct was.uutiated agam.st the petitioner. On 22.12.86 fhe disciplinary aufhorily passcd aa order reinoviag fhe petitioner from semcc. The petitioner fUed an appeal beforc the State Govemiaent Ou 23.6.87 thc State Goverament aUowed the appeal, set aside the order of reinoval and directed reinstatement of the petitioner (Annexure P/5). The petitioner joined his duties after his reiastateiaent aad fhe Commissioner of Sales Tax regularized fhe service by order dated 9.7.87 (Annexure P/6). Thereafter the CoiumKsioner of Sales Tax wrote a letter dated 30th Deceniber, 1987, to fhe Principal Secretaiy, Separate Revenue Departaient for reviewing the order of the State Govemment. On 29.8.89 (Amiexure P/12) the Stete Goverrtment reviewed fhe order, passed earUer, imposcd a major penalty ofcorapulsoiy retirement The petitioner chaUenged the order of review uaposuig fhe pen.alty of coinpulsoiy retirement before the M.P. State Adinimsteative Tnbiinal, Bench at Jabalpur ia O.A. No. 2514/1989. Leamed Admmistrative Tribunal after having considered the case on inerit heU as under:- I. 'l^':-' ESS fc .^ 'te-^" \.; 'The reviewiag d^ciplmary authorily infact reviewed and reversed fhe order passed by the appellate authority i.c. the State Gtoverument aad thereafter imposed a major peiialty wheu fhe appeUate aufhority had exonerated tlie appUcaat It TS the ord.er ofthe appeBate authorily whieh has been reviewed bv fhe State Gtovertunenf and qziashed the order dated 29.8.1989 (Anaexure P/12) passed ia review, on 14.8.1990 (Annexurc P/13). 7, After a period of 6 years, the rcspondent No. 3/ State of Madhya Pradesh issued a shcw cause notice on 8,10.1996 on the ground that tbe order dated 29.8. 1989 passed ra revicw was quashed by fhe Madhya Pradesh State Admtaisteative Tribzmal on fhe ground fhat the petitioner was not afforded an opportuiuty of hearing beforc the oid.er ia review dated 29.8.1989 was passed. 8. The petitioner has ffled this petition impugning fhe said show cause notice dated 8.10.1996 (Annexurc P/l), on several gnauiids, inter alia that fh.e respondent No. 3/State of Madhya F'radesh was not coiapetent to uutiate a fiesh enquiry on the basis offhe oM char^e-sheets dated 27.12.1976 (Aanexure P/2) aad dated 23.10.1980 (Annexure P/4), when the order passed by the disciplinaiy aufhority as weB as by ffae appeUate aufhority m review, has been quashed by the Madhya Predesh State Admmistrative Tribunal, whlch has attained fiiiaUly and the case camiot be reopened again and further that the first order dated 23.6.1987 (AnitexUreP/5) passed ia appeal caa be reviewed only once, and the power ofreviewwas exercised on 4 :sS- 9. 10, 11. 12. 4.5.1988 (Aiuiexure P/10) whereby the prayer for review was dismissed. Shri PrafuU Bharat, leamed counsel appearmg for the petitioner naade his submissions, as stated above, in fhe petitioa. Leamed counsel prayed for quashiag of the shcw cause notice as bein^ coatraiy to fhe rules and fhe provisions and fiirfher prayed for grant ofconsequential benefits, thereof. Sint. Aaju Ahuja, leamed Deputy Govenuaent Advocate appearmg for the respondents No. 1 and 2 submitted tfaat fhe State of CMiattisgarh came into esastence on 1.11.2000 and the show cause notice was issued prior to the bifurcation ofthe old State of Madhya Pradcsh and as such fhe respondents No. 1. aad 2 are not competent to reply the avcrments of ttie petition and submissions aaade by leamed counsel for the pefttioncr. In tfais petition, notice was issuedon 1.4.2003 to aU fhe respondents includmg fhe State of Madhya Pradesh aad Commissioner, Coinmercial Tax, Indore (M.P.). Notices were duly seryed by registered A.D. Despiteservice, the respondents No. 3 aud 4, i.e. present State of Madhya Preadesh aad Comnaissioner, State of Madhya Pradesh, Coinmercial Tax, Indore, had chosen not to appear before this Court aad as such neither aay response was filed ou behalfoftbe rcspondeats No. 3 and 4 aor auy coiuisel on fheir behalf has put ia appearaace. Having heard learaed counsel for fhe parties, I have perused fhe records appended to fhe petition aad retum filcd by 'fhe respoiuients No. 1 and 2. / ~~~~^-^ '• '^.: ..^•'•:" V. 13. It is clearly establtehed that fhe Madhya Pradesh Adininistrative Tribitaal wlule quashiag fhe order ia review passed by fhe State of Madliya Predesh in the name and on behatf of the Govemor dated 29.8.1989, didnot graataay liberty to fhe icspondents to mitiate a fresh eaquuy. The ordcr offhe disciplinaiy authority dated 22.12.1986, reiuoviag fhe petitioner fix)m service was set aside by order dated 23.6.1987 (Annexure P/5) iu. appeal passed by the respondent No. 3 ia the name aad on behalf of the Gtoveraor. Thereafter, prayer for review by the department was also disnussed oa 4.5.1988 (Annexure P/10). The order dated 29.8.1989 passed ia second reviewwas inodified aad fhe inajor punisluaent of coinpulsory retirement was imposed. Leamed Administrative Tribuual by order dated 14.8.1990 (Aanexure P/13) qu^hcd the order dated 29.8.1989 without graating any liberty to initiate a Q'eah departmental enquiry or issue a fi-esh show cause notice to the petitioner. 14. Rute 29 of the Madhya Pradesh Civfl Semccs (Classification, Control aad Appeal) Rules, 1966 which provides for givtag reasonable opportunily of making a representation before passing an order by any reviewing auffaority, has also not coinpMed -witfa. Even otherwise, oncc fhe State Administrative Tribunal has considered fhe uupugaed order dated 29.8.1989 aud quasbed fhe same, fhe respondcnts have no authorily to initiate a fi'csh departmental enqiiiiy, contraiy to fhe onler passed by fhe State AdmiiUBteative Tribunal oa 14.8.1990 (Annexure P/13). \ ^i "a6; iBabhi 15. The Supreme Gourt in the case of B«io»t*Faraw Ud., v. Cominterioaer, Kunanoa Dlvteion, Haiaital and otliers1 observed as undcr:- "Res judicata is a ptea available in cnrirpnx«edu^s in accoidaace with Scctfon 11 ofthc Code ofCnril Pix>cedure. It is a doctrme applied to give fiuality to Tis' in anffaal or appellate pToceedings. The doctrine is substance means thaf an issuc or a point decided and attaming finaKly shouM not be aUowed to bs reopcned and re-agitated twice cwer. The Uteral meammg ofres 'eveiything that inEy form aa object ofrights and includcs an object, subject-matter or status''and tcs judicata Uteralty means : 'a iiiatter adjudged; a thing judicialfy actel upon or decaled; a fhu^; or matter setflcd by judgment' Section 11 of GPC engrafts.fhis docteinc with a purpose that 'a final judgmcnt rendeiwl by a Court of competent jurisdietfon on the merits is conclusive as to tfae r^hts of the partics and their privies, and, as to fhem, (»nstitutesaa absolute bar to a subscquent action involving the same claiin, demand orcause ofaction." 16. A matter adjudicated, adjusted BaaSy between the iMrtics involving fhe sainc cause of action canaot be re-^itated ^ain bcfoie thc tribuaal or authority and is barred by princyte of res-jedicata. /fr^ 17. For fhe reasons stated-above, fhe uapugncd show cause notfce dated 8.10.1996 . (Anaexuxc P/1), bemg incoiapetent and unconstitutional descwes to bc quashcd and is according qu^hed. The pcti.tk>ner is entitled to aU the consequential benefits, mcluding seaiority, diflference of wages and considcration for proinotion, ifany, in accordance with. thc oidcr dated 23.6.1987 (Anaexure P/5) passed by the respondent No.3. 18. Acconliagty, the petitlon is aUowed. No order as to oosts. -i-V- Sc Satish K^%gnihotri Judgc 'AIR 2004 Supreme Court 2186 .i^'"^y"^ —.^ata^e