# Ram Prakash Bajpai v. State of U.P

- **Citation:** (2021) 3 ILRA 145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-15
- **Case number:** Service Single No. 331 of 2012
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-prakash-bajpai-v-state-of-u-p-46901
- **Pages:** 6

## Headnote

A. Constitution of India - Article 226 -
Writ - Res Judicata -Applicability- Second
writ petition -Maintainability-Earlier writ
petition was not decided on meritsAcquittal in criminal case subsequently -
Effect-Principle
of
res
judicata
is
applicable to the writ proceedings in
India. But, the same should not be applied
on mere technical consideration of form,
but by a matter of substance within the
limits allowed by law -Held, from the
order passed by this Court in the first writ
petition it cannot be inferred in any
manner
that
the
challenge
of
the
petitioner to his dismissal was decided by
this court on merits or that the petitioner
had abandoned his challenge to the same
in any manner whatsoever-Since the
earlier writ petition was not decided on
merits the principle of res judicata cannot
be applied. (Para 8)

B. Service law-Departmental enquiry-No
witness to proof document against the
employee/petitioner - Enquiry not as per
the procedure established by law - Effect
-Held, Punishment order passed against
the petitioner on the basis of an defective
and illegal enquiry cannot stand. (Para 10
and 12)
Writ Petition allowed. (E-1)

Cases relied on :-

## Text

3 All. Ram Prakash Bajpai Vs. State of U.P.
145
(2021)03ILR A145
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:LUCKNOW 15.03.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Service Single No. 331 of 2012

Ram Prakash Bajpai ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Prem Shankar Pandey

Counsel for the Respondent:
C.S.C.

A. Constitution of India - Article 226 -
Writ - Res Judicata -Applicability- Second
writ petition -Maintainability-Earlier writ
petition was not decided on meritsAcquittal in criminal case subsequently -
Effect-Principle
of
res
judicata
is
applicable to the writ proceedings in
India. But, the same should not be applied
on mere technical consideration of form,
but by a matter of substance within the
limits allowed by law -Held, from the
order passed by this Court in the first writ
petition it cannot be inferred in any
manner
that
the
challenge
of
the
petitioner to his dismissal was decided by
this court on merits or that the petitioner
had abandoned his challenge to the same
in any manner whatsoever-Since the
earlier writ petition was not decided on
merits the principle of res judicata cannot
be applied. (Para 8)

B. Service law-Departmental enquiry-No
witness to proof document against the
employee/petitioner - Enquiry not as per
the procedure established by law - Effect
-Held, Punishment order passed against
the petitioner on the basis of an defective
and illegal enquiry cannot stand. (Para 10
and 12)
Writ Petition allowed. (E-1)

Cases relied on :-

1. Sarguja Transport Service Vs St. Transport
Appellate Tribunal, M.P., Gwalior, & ors., (1987)
1 SCC 5

2. Sheoparsan Singh & ors. Vs Ramnandan
Singh & ors. 1916 ILR 43P.C. 694

3. Canara Bank Vs N.G. Subbaraya Setty & ors.
(2018) 16 SCC 228

4. Subhas Chandra Sharma Vs Managing
Director & anr. 2001 (1) UPLBEC 541

5. Subhas Chandra Sharma Vs U.P. Co-operative
Spinning Mills & ors. 2001 (2) UPLBEC 1475

6. St. of Uttar Pradesh Vs Saroj Kumar Sinha
(2010) 2 SCC 772

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Heard learned counsel for the
petitioner and Sri H.P. Srivastava, learned
Additional Chief Standing Counsel for
respondents.

2. Petitioner was working on the post
of the driver when he was sent from
Lucknow to Bangaluru by truck along with
Sri V.K. Saxena, Junior Aircraft Mechanic,
and Sri Harish Chandra @ Munna, Cleaner
to bring spare parts of a helicopter. The
allegations are that on 06.06.1994, they
illegally loaded the truck with some teak
wood, for which they were arrested in
District Adilabad, State of Andhra Pradesh.
A criminal case was lodged against them
before the Court of Munsif Magistrate,
Boath, District Adilabad, State of Andhra
Pradesh. On 18.06.1994, the petitioner
along with the junior aircraft mechanic and
the cleaner was suspended. All three
persons
were
charge-sheeted
in
a
departmental
enquiry
and
they
also
146 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted their reply. The enquiry officer
called all the three delinquent employees in
person and they again submitted their
written explanations. The enquiry officer
submitted his report on 14.11.1994. On
04.08.1995 the petitioner was dismissed
from service. Thus petitioner filed a writ
petition No.4527 (S/S) of 1995 against his
dismissal order dated 04.08.1995. During
the pendency of the said writ petition, by
order dated 12.02.1996, the suspension of
both the junior aircraft mechanic and the
cleaner were withdrawn and they were
permitted to join duties. However, the order
conditioned, that, in case they were found
guilty in the criminal case they would be
dismissed. The trial court by its judgmentdated 04.07.1996 acquitted both the junior
aircraft mechanic and the cleaner but
convicted the petitioner. As a consequence,
both, the junior aircraft mechanic and the
cleaner were permitted to continue in their
services with all benefits. The petitioner
preferred an appeal against the judgment of
the trial court. By its judgment dated
30.04.1998, the Sessions Judge, Adilabad
allowed the appeal of the petitioner and
acquitted him also in the criminal case. The
Writ Petition No.4527 (S/S) of 1995 filed
by the petitioner against his dismissal was
still pending. On 19.09.2011, the same was
taken up and the High Court after hearing
all the parties concerned, taking into
consideration the fact that as a consequence
of their acquittal in the criminal case the
other two delinquent employees involved
along with the petitioner were exonerated
in the disciplinary proceedings, permitted
the petitioner also to approach the opposite
party No.2, Director, Civil Aviation, U.P.
for similar relief, as he also now stood
acquitted in the said criminal case. The
petitioner moved such a representation on
26.09.2011, which was rejected by the
Director, Civil Aviation (Maintenance,
Security and General Administration Unit),
Lucknow Airport, by his order-dated
30.12.2011. Hence, present writ petition is
filed by the petitioner challenging, both, the
order
dated
30.12.2011
whereby his
representation is rejected as well as his
earlier dismissal order dated 04.08.1995.

3. Learned counsel for petitioner raises
two submissions before the Court. The first,
that, since the other two persons also
involved in the incident were reinstated in
service on their acquittal in the criminal case,
hence petitioner is also entitled to the same
relief on parity. Second, on merits, the
petitioner submits that the departmental
enquiry conducted by the enquiry officer is
illegal as no witness was called or appeared
for the department to prove any of the
allegations and/or documents against the
petitioner. The procedure prescribed for the
departmental enquiry was not followed. Only
an explanation was taken from the petitioner
based on which the enquiry officer submitted
his report and the punishment order was
passed. In his explanation, the petitioner had
denied any wrongdoing on his part and,
therefore, the report submitted by the enquiry
officer, bereft of any evidence on part of the
department, cannot stand.

4. On the other hand, Mr. H.P.
Srivastava,
learned
Additional
Chief
Standing Counsel objected that the present
writ petition is a second petition and,
therefore, the same is barred by the
principle of res judicata, which is equally
applicable to the writ proceedings. Before
coming to the merits of the case, it would
be appropriate to consider the objection of
res judicata raised by the State.

5. The law about the applicability of
the principle of res judicata to the writ
proceedings is upheld and elaborated in a
3 All. Ram Prakash Bajpai Vs. State of U.P.
147
large number of judgments including in
Sarguja Transport Service vs. State
Transport
Appellate
Tribunal,
M.P.,
Gwalior, and others1. In Paragraph 9, the
Supreme Court held that even withdrawal
of the writ petition without leave of the
court would amount to abandoning of his
claim by the petitioner and thus a second
writ petition would not be maintainable on
his behalf. The relevant paragraph 9 of
Sarguja Transport Service1 reads:

"9. The point for consideration is
whether a petitioner after withdrawing a
writ petition filed by him in the High Court
under Article 226 of the Constitution of
India without the permission to institute a
fresh petition can file a fresh writ petition
in the High Court under that Article. On
this point the decision in Daryao vs. State
of U.P., (1962) 1 SCR 574 is of no
assistance. But we are of the view that the
principle underlying Rule 1 of Order XXIII
of the Code should be extended in the
interests of administration of justice to
cases of withdrawal of writ petition also,
not on the ground of res judicata but on the
ground of public policy as explained above.
It would also discourage the litigant from
indulging in bench-hunting tactics. In any
event there is no justifiable reason in such
a case to permit a petitioner to invoke the
extraordinary jurisdiction of the High
Court under Article 226 of the Constitution
once again. While the withdrawal of a writ
petition filed in a High Court without
permission to file a fresh writ petition may
not bar other remedies like a suit or a
petition under Article 32 of the Constitution
of India since such withdrawal does not
amount to res judicata, the remedy under
Article 226 of the Constitution of India
should be deemed to have been abandoned
by the petitioner in respect of the cause of
action relied on in the writ petition when he
withdraws it without such permission. In
the instant case the High Court was right in
holding that a fresh writ petition was not
maintainable before it in respect of the
same subject-matter since the earlier writ
petition had been withdrawn without
permission to file a fresh petition. We,
however. make it clear that whatever we
have stated in this order may not be
considered as being applicable to a writ
petition involving the personal liberty of an
individual in which the petitioner prays for
the issue of a writ in the nature of habeas
corpus or seeks to enforce the fundamental
right guaranteed under Article 21 of the
Constitution since such a case stands on a
different footing altogether. We however
leave this question open. "

6. The Privy Council, in Sheoparsan
Singh and Ors. vs. Ramnandan Singh and
Ors2, while interpreting the principle of res
judicata in the context of the Indian law, in
paragraph 15 states:

"15.
There
has
been
much
discussion at the Bar as to the application
of the plea of res judicata as a bar to this
suit. In the view their Lordships take the
case has not reached the stage at which an
examination of this plea and this discussion
would become relevant. But in view of the
arguments
addressed
to
them
their
Lordships desire to emphasize that the rule
of res judicata, while founded on ancient
precedent, is dictated by a wisdom which is
for all time. " It had been well said,"
declared Lord Coke, " interest reipublicae
ut
sit
finis
litium,
otherwise
great
oppression might be done under colour and
pretence of law ": 6 Coke, 9a. Though the
rule of the Code may be traced to an
English source, it embodies a doctrine in
no way opposed to the spirit of the law as
expounded by the Hindu commentators.
148 INDIAN LAW REPORTS ALLAHABAD SERIES
Vijnanesvara and Nilakantha include the
plea of a former judgment among those
allowed by law, each citing for this purpose
the text of Katyayana, who describes the
plea thus: " If a person though defeated at
law sue again he should be answered, 'You
were defeated formerly.' This is called the
plea of former judgment." (See the
Mitakshara (Vyavahara), bk. II., ch. i.,
edited by J.R. Gharpure, p. 14, and the
Mayuka, ch. i., Section 1, p. 11 of Mandlik's
edition.) And so the application of the rule
by the Courts in India should be
influenced by no technical considerations
of form, but by matter of substance within
the limits allowed by law." (emphasis
added)

7. The said law settled by the Privy
Council is again considered and applied by
the Supreme Court in the case of Canara
Bank vs. N.G. Subbaraya Setty and Ors3.
After elaborating the applicability and scope
of the said principle in number of judgments,
the Supreme Court in Canara Bank3 in
paragraph 5 held:

"5. Res judicata is, thus, a doctrine
of fundamental importance in our legal
system, though it is stated to belong to the
realm of procedural law, being statutorily
embodied in Section 11 of the Code of Civil
Procedure, 1908. However, it is not a mere
technical doctrine, but it is fundamental in
our legal system that there be an end to all
litigation, this being the public policy of
Indian law. The obverse side of this doctrine
is that, when applicable, if it is not given full
effect to, an abuse of process of the Court
takes place. However, there are certain
notable exceptions to the application of the
doctrine."

8. The above judgments make it clear
that the principle of res judicata is
applicable to the writ proceedings in India.
But, the same should not be applied on
mere technical consideration of form, but
by a matter of substance within the limits
allowed by law. Therefore this court is
required
to
inspect
the
facts
and
circumstances of the case to decide if the
objection of the state has any substance. A
perusal of the order-dated 19.09.2011,
passed by this Court in the first writ
petition, demonstrates that this Court did
not consider the submissions of the
petitioner challenging his termination order
on merits. Since the petitioner raised a
fresh ground, that his case was at par with
the other two delinquent employees who
were
discharged
in
the
disciplinary
proceedings only because
they were
acquitted in the criminal case, hence now
on his acquittal he should also be
discharged, the High Court, noting the said
submission, permitted the petitioner to raise
the same also before the Director, Civil
Aviation, Lucknow, and required the
Director to consider the same. From the
order dated 19.09.2011 of this Court in the
first writ petition it cannot be inferred in
any manner that the challenge of the
petitioner to his dismissal was decided by
this court on merits or that the petitioner
had abandoned his challenge to the same in
any
manner
whatsoever.
Learned
Additional Chief Standing Counsel could
not show any such facts or circumstance
from which this Court can infer that the
petitioner ever abandoned any of his rights
or claims. Therefore, since the earlier writ
petition was not decided on merits the
principle of res judicata cannot be applied
and since the petitioner has not surrendered
challenge to his dismissal even the
principle settled in case of Sarguja
Transport
Service
(supra)
is
not
applicable. It would not be appropriate for
this Court to take a hyper-technical view
3 All. Ram Prakash Bajpai Vs. State of U.P.
149
and debar the petitioner from submitting
his case on merits, which till now is never
considered on merits. Thus, the objection
of the learned Additional Standing Counsel
is rejected. In view thereof, this Court is
bound to consider the case of the petitioner
on merits.

9. On perusal of the order dated
30.12.2012, whereby the representation of
the petitioner is rejected, it is found that in
the entire order, the Director, Civil
Aviation, U.P., Lucknow has nowhere
considered the claim of parity raised by the
petitioner with the other two persons
similarly placed. The Director has only
repeated the averments and thereafter
rejected the representation of the petitioner
on the ground that since the petitioner was
in-charge of the vehicle, therefore, it was
his duty to ensure that the same was not
misused. The junior aircraft mechanic in
the vehicle was a person much superior to
the petitioner. Once a superior person was
present and the entire alleged incident took
place in his presence, and further, the said
superior
person
is
discharged
from
departmental proceedings on his acquittal
in the criminal case, there is no reason not
to give such a benefit to the petitioner also.
Similarly, even the cleaner, a person junior
to the petitioner, is also discharged from
the departmental proceedings on his
acquittal from the criminal case. Therefore,
the petitioner is also entitled to be treated at
par with them and is entitled to a similar
discharge
from
the
departmental
proceedings on his acquittal in the criminal
case.

10. So far as the second submission of
the petitioner is concerned, a perusal of the
record of departmental proceedings shows
that
no
witness
appeared
in
the
departmental
enquiry
or
proved
any
document against the petitioner. The law in
this regard is well settled.

11. (A) This Court in Subhas
Chandra Sharma vs. Managing Director
and another4, said:-

"In
our
opinion
after
the
petitioner replied to the charge-sheet a
date should have been fixed for the enquiry
and the petitioner should have been
intimated the date, time and place of the
enquiry and on that date the oral and
documentary
evidence
against
the
petitioner should have been led in his
presence and he should have been given an
opportunity to cross-examine the witnesses
against him and also he should have been
given an opportunity to produce his own
witnesses and evidence. If the petitioner in
response to this intimation had failed to
appear for the enquiry then an ex parte
enquiry should have been held but the
petitioner's service should have not been
terminated without holding an enquiry. In
the present case it appears that no regular
enquiry was held at all. All that was done
that after receipt of the petitioner's reply to
the charge-sheet he was given a showcause notice and thereafter the dismissal
order was passed. In our opinion this was
not the correct legal procedure and there
was violation of the rules of natural justice.
Since no date for enquiry was fixed nor any
enquiry held in which evidence was led in
our opinion the impugned order is clearly
violative of natural justice."

(B) The above judgment was
followed by another Division Bench in
Subhas Chandra Sharma vs. U.P. Cooperative Spinning Mills and others5
where Court held:

"In
cases
where
a
major
punishment proposed to be imposed an oral
enquiry is a must, whether the employee
150 INDIAN LAW REPORTS ALLAHABAD SERIES
request, for it or not. For this it is
necessary to issue a notice to the employee
concerned intimating him date, time and
place of the enquiry as held by the Division
Bench of this Court in Subhash Chandra
Sharma v. Managing Director, (2000) 1
UPLBEC 541, against which SLP has been
dismissed by the Supreme Court on 16-82000." (emphasis added)

(C) In State of Uttar Pradesh vs.
Saroj Kumar Sinha6, the Supreme Court said:

"An inquiry officer acting in a quasijudicial authority is in the position of an
independent adjudicator. He is not supposed to
be a representative of the department/
disciplinary
authority/
Government.
His
function is to examine the evidence presented
by the Department, even in the absence of the
delinquent official to see as to whether the
unrebutted evidence is sufficient to hold that the
charges are proved. In the present case the
aforesaid procedure has not been observed.
Since no oral evidence has been examined the
documents have not been proved, and could not
have been taken into consideration to conclude
that the charges have been proved against the
respondents.

When a departmental enquiry is
conducted against the government servant it
cannot be treated as a casual exercise. The
enquiry proceedings also cannot be conducted
with a closed mind. The inquiry officer has to
be wholly unbiased. The rules of natural justice
are required to be observed to ensure not only
that justice is done but is manifestly seen to be
done. The object of rules of natural justice is to
ensure that a government servant is treated
fairly in proceedings which may culminate in
imposition
of
punishment
including
dismissal/removal from service."

12. From the above facts, it is found
that the enquiry held against the petitioner is
not held as per the procedure established by
law. Thus the punishment order passed
against the petitioner on the basis of such an
defective and illegal enquiry cannot stand.

13. Given the aforesaid, the writ
petition is allowed. Both the order of
dismissal dated 04.08.1995 as well as the
order
dated
30.12.2011
rejecting
the
representation of the petitioner are set aside.
Petitioner would be entitled to all benefits of
service as are granted to other two delinquent
employees i.e. Sri V.K. Saxena, Junior
Aircraft Mechanic and Sri Harish Chandra @
Munna, Cleaner.
----------
(2021)03ILR A150
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.03.2021

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Service Single No. 3597 of 2020
and
Service Single No. 11886 of 2020

Mohit Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Badrish Kumar Tripathi

Counsel for the Respondents:
C.S.C., Gaurav Mehrotra, Jogendra Nath
Verma

A. Service law-Post of Cane SupervisorQualification-CCC certificate issued by
DOEACC Society - Nature - Course on
Computer Concepts (CCC) is designed to
fulfill the beginner level computer literacy
and that can be undertaken by a person at
his own also - Its objective is to enable a
student
to
acquire
the
knowledge
pertaining to fundamental of information
technology - Held, qualification of CCC as
an expertise in the computer application