1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1306 OF 2002 Karam Singh. ...Petitioner. vs. Air India Ltd. ...Respondent. --- Mr.M.B.Singh, for Petitioner. Mr.S.R.Talsania, Sr.Advocate with S.K.Churi, for Respondent. CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATED: 29th September,2009 P.C.:- 1. By this petition, the petitioner challenges two orders. The first order is order dated 22.9.1998. By that order, the punishment of stoppage of one annual increment due to the petitioner on 1.1.1999, 2 was imposed. The second order challenged by the petitioner is order dated 21.11.2001 whereby the pay of the petitioner was re-fixed and recovery was directed to be made from the petitioner. 2. So far as the petitioner s challenge to the order dated 22.9.1998 is concerned, in our opinion, no relief can be granted to the petitioner for two reasons. The first reason is that the petitioner is guilty of latches. The order is dated 22.9.1998 and the petition has been filed in the month of April, 2002. So far as the aspect of latches is concerned, the only explanation that is to be found, even according to the petitioner, is in paragraph 19 of the petition. It reads as under:- 19. The petitioner prays for condonation of delay in challenging the first order (Ex. E ). The petitioner did not immediately challenge the said order as he did not fully realize the implications of the said order or the interpretation/effects of the said order. There is however no period of limitation 3 prescribed. The petitioner prays that this Hon ble Court be pleased to condone the delay in the interests of justice. The petitioner says and submits that there is no delay in respect of the challenge to the second impugned order (Ex. L ). The learned Counsel appearing for petitioner also invited our attention to the statements made in paragraph 7 of the petition wherein the petitioner states thus:- The petitioner also considered the final implications of the order of punishment and visualized that the expenses involved in litigation would far out weigh the effect of the punishment. The petitioner was also conscious of the fact that the management of the respondent does not take kindly to any challenge to their actions in the courts of law and has a history of being vindictive against persons who had approached the courts of law for redressal of their grievances. However, when the respondents sought to deny the petitioner the promotion as a 4 manager effective 1/1/2000 on the solitary grounds of the impugned order having been issued to the petition, the petitioner filed a Writ Petition in this Hon ble Court challenging the said refusal, being Writ Petition no.946 of 2000. The petitioner says that the said petition has been admitted by this Hon ble Court and is pending hearing and final disposal. The petitioner says that thereafter the petitioner was once again denied the promotion effective 1/1/2001 on the grounds that his earlier petition was pending in this Hon ble Court. The petitioner challenged the same by filing another Writ petition. When the same came up for admission before the division Bench of this Hon ble Court presided over by the Hon ble Mr.Justice R.M.Lodha, His Lordship was pleased to observe that the petition should take out a Notice of motion in the pending petition rather than filing a fresh petition. Accordingly, the petitioner took out a notice of motion, which notice was disposed of by the division bench of this Hon ble Court presided over by the Hon ble Mr.Justice A.P.Shah whilst directing that the petition itself be 5 taken up for immediate hearing. The petition was accordingly placed on board but did not reach. The petitioner seeks no reliefs in respect of the pending petition in the present petition. Thus, the explanation given for not filing the petition immediately in the year 1998 is that the petitioner did not fully realized the implication of the order of punishment. Obviously, this reason can be given by every litigant who approaches the Court at his own sweet will. Therefore, it is incapable of being accepted. Even assuming that the petitioner did not realise that the order of punishment would be used against him and therefore, he did not challenge the order of punishment then also it is clear from the averments made in the petition itself that the petitioner was denied promotion because of punishment, in the year 2000, and therefore, at least at that time the petitioner should have filed the petition. There is no explanation found anywhere as to why, when the petitioner was denied promotion in the year 2000 relying on the punishment, he did not file petition at 6 that time challenging the punishment. Thus, we find no explanation given by the petitioner for the latches involved in filing the petition. The petitioner accepted the order imposing punishment and allowed the respondent to use that order of punishment for denying promotion not only once but twice, and thereafter, has filed this petition. In our opinion, in view of the latches, the petition cannot be entertained and no relief can be granted to the petitioner. 3. The second aspect which, according to us, is relevant is that the petition is also barred by the principle of constructive res judicata. When the matter came up before us on the last date, we had indicated to the learned Counsel appearing for petitioner that though it is not raised in the reply, we see that the conduct of the petitioner of filing Writ Petition no.946 of 2000 challenging the order denying promotion to him relying on the punishment order, without challenging the order imposing punishment, bars filing of the petition without taking leave of the Court, while filing Writ Petition no.946 7 of 2000, for filing this petition challenging the order imposing punishment. The learned Counsel thereafter placed before us a judgment of the Division Bench of Allahabad High Court in the case Purshottam Das Tandon Vs. Military Estate Officer, AIR 2000 ALLAHABAD 127 to contend that the principle contained in Order 2 Rule 2 of the Civil Procedure Code does not apply to Writ petitions. He also submitted relying on the judgment of the Supreme Court in the case of Rikabdas A. Oswal Vs. Deepak Jewellers & Ors, (1999)6 Supreme Court Cases 40 that as the plea of bar by Order 2 Rule 2 of C.P.C. is not raised by the Respondent, the Court cannot on its own consider the same. The learned Counsel also submits that the writ petitions filed in same order by the other persons earlier were entertained by this Court and reliefs were also granted and therefore, reliefs should not be denied to the petitioner for this reason. 4. Now there is no dispute that if the principle on which Order 2 Rule 2 of C.P.C. is based is applied, the present petition would be barred, because the 8 cause of action to file petition challenging the punishment imposed as a result of departmental inquiry against the petitioner had accrued to the petitioner in the year 1998. Relying on that punishment, the employer denied him promotion and therefore, when Writ Petition no.946 of 2000 was filed, the cause of action for filing writ petition challenging the order imposing punishment had already accrued to the petitioner. The subject matter of the petition filed by the petitioner challenging the order denying promotion was also the punishment imposed on the petitioner because it is only on the basis of that punishment that the promotion was denied. The only question to be considered, therefore, is whether the principles enshrined under Order 2 Rule 2 of CPC are applicable to writ petitions. Perusal of the above referred judgment of the Division Bench of Allahabad High court shows that even the Division Bench has held that the principles underlying Order 2 Rule 2 of C.P.C. are based upon the principles of public policy and considering that Article 226 of the Constitution of India confers extraordinary jurisdiction, the 9 principles based on public policy should normally be made applicable. But the Division Bench referring to the judgment of the Supreme Court in the case of Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh, AIR 1962 SC 1334 held that the principles underlying Order 2 Rule 2 are not applicable to writ petitions. Therefore, we perused the judgment of the Supreme Court in the Case Devendra Pratap Narain Rai Sharma Vs. State of UP referred to above. In paragraph 12 the Supreme Court has observed thus:- The High Court has disallowed to the appellant his salary prior to the date of the suit. The bar of O.2 R.2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Art.226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court. Perusal of the above quoted observations shows that 10 the Supreme Court has not finally decided and concluded the question whether the bar of principles underlying Order 2 Rule 2 of CPC applies to writ petitions filed under Article 226 of the Constitution. However, we find that the Constitutional Bench of the Supreme Court in its judgment in the case Gulabchand Chhotalal Parikh Vs. State of Gujarat, AIR 1965 Supreme Court 1153 has in terms held that the doctrine of constructive res judicata is applicable to Articles 226 and 32 of the Constitution of India. In our opinion, if a litigant abandoned the cause of action which has accrued to him, by omitting the reliefs based on that cause of action in the litigation instituted by him and leads the other side to believe that he has abandoned his cause of action, then he cannot be permitted to take that cause of action again because it will be against the public policy and it will not advance justice. In our opinion, therefore, the principles underlying Order 2 Rule 2 will apply to writ petitions also. We do not see any good reason as to why the principles underlying Order 2 Rule 2 which are based on public 11 policy would not apply to the jurisdiction of this Court under Article 226 of the Constitution. The object of the principles which underlying Order 2 Rule 2 of CPC is to prevent multiplicity of litigations. The rule in Order 2 Rule 2 of CPC is founded on the principle that a person shall not be vexed twice over for one and the same cause. The Supreme Court in its judgment in the Case Deva Ram & another Vs. Ishwar Chand & another, AIR 1996 Supreme Court 378 has considered the rule of res judicata. The observations made by the Supreme Court in paragraphs 21 and 22 are relevant, they read as under:- 21. Rule of res judicata is contained in Section 11 of the Civil Procedure Code. Benefit of all its Explanations, namely, Explanations I to VIII. Section 11 is quoted below: 11.Res judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former 12 suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try any such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Res judicata Pro Veritate Accipitur is the full maxim which has, over the years, shrunk to mere Res Judicata . 22. Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence Interest reipublicaeut sit finish litium (it concerns the State that there be an end to law suits) and partly on the maxim Nemo debet bis vexari pro una at eadem causa (no man should be vexed twice over for the same cause). The section does not affect the 13 jurisdiction of the Court but operates as a par to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a Court, competent to try the subsequent suit in which such issue has been raised. It is clear from the above quoted paragraphs that one of the maxims on which rule of Res judicata is based is Nemo debet bis vexari pro una at eadem causa which means no man should be vexed twice over for the same cause of action. Thus, the rule contained in Order 2 Rule 2 of CPC is a part of the doctrine of Res Judicata. In a series of judgments, the Supreme Court has held that the doctrine of Res Judicata applies to the petitions filed under Article 226 of the Constitution. In our opinion, therefore, if a relief which could have been claimed in a previously instituted writ petition has been omitted to be 14 claimed, an independent petition for the same relief cannot be allowed to be instituted. 5. So far as the submission made on behalf of the learned Counsel appearing for petitioner that unless the plea that the petition is the barred by the principles underlying Order 2 Rule 2 of CPC is raised by the Respondent, the Court cannot entertain it, is concerned, in our opinion, the submission made relying on the judgment of the Supreme Court in the case of Rikabdas A. Oswal referred to above, also does not have any substance. Perusal of that judgment shows that the Supreme Court has held that the District Judge could not have entertained the plea based on the provisions of Order 2 Rule 2 of CPC because that plea was not raised in the written statement filed before the Trial Court as also in the Appeal Memo filed before the District Judge. The plea based on Order 2 Rule 2 of CPC is not a pure plea of law, but it raises mixed question of law and facts, and therefore, unless it is raised no opportunity to the other side is available to meet with that, and 15 therefore, the Supreme Court held that as the plea was not specifically raised, it should have not been considered by the District Judge for the first time as it was not raised before the Trial Court. So far as the present case is concerned, here we are considering the writ petition filed under Article 226 of the Constitution. In our opinion, when a Court is hearing a petition in its extraordinary jurisdiction, before granting any relief to the petitioner, must be satisfied that the order that the petitioner seeks would be in the interest of justice and would advance justice. In our opinion, therefore, if grant of relief to a particular litigant is barred by the principle of public policy, then the Court will fail in its duty if it ignores such a principle while granting relief to the petitioner. However, this will have to be done by the Court in consonance with the principles of natural justice. Therefore, on the last date of hearing, we pointed out to the learned Counsel appearing for petitioner what was going on in our mind and granted him time to meet with the ground and we heard him on that ground. In our opinion, merely 16 because in the reply the plea is not taken, will not debar this Court from considering such a plea. In our opinion, therefore, no relief can be granted to the petitioner, so far as the challenge to the order imposing punishment is concerned. 6. So far as the order dated 21.11.2001 is concerned, it is clear from the order that the pay of the petitioner was re-fixed. When the petitioner made grievance about improper fixation of his pay inasmuch as his increment which, according to the petitioner, was due to him was not released, the respondent re- fixed the scale of the petitioner to the disadvantage of the petitioner and directed recovery to be made from the petitioner. In our opinion, the order, which has adverse consequences like monetary benefits accrued to the petitioner is to be recovered, is to be made in consonance with the principles of natural justice. In our opinion, order dated 21.11.2001 should have been made by the Respondent only after issuing show cause notice to the petitioner and after giving him an opportunity to show cause. Admittedly, 17 the order dated 21.11.2001 has been made in violation of principles of natural justice. In our opinion, therefore, that order will have to be set aside. 7. In the result therefore, the petition succeeds in part. In so far as the order dated 21.11.2001 is concerned, the order is set aside. However the respondent shall be at liberty to re-fix the pay of the petitioner after granting the petitioner an opportunity of being heard. So far as the challenge to the order imposing punishment on the petitioner is concerned, the petition is dismissed. The petition is disposed of. No order as to costs. (D.K.DESHMUKH, J.) (R.G.KETKAR, J.)