JUDGMENT
C.K. Thakker, J.
1. This petition is filed by the petitioner for quashing and setting aside order Annexure – “A”, dated September 2, 1995, passed by the Director General of Police, respondent No. 1 herein, by which the petitioner, who was serving as Police Inspector, Valsad, is transferred to Anti-Terrorist Squad (“A.T.S.” for short) and all consequential actions taken in pursuance of the said order, being illegal, ultra vires and unconstitutional.
2. It is the case of the petitioner that he was appointed as Police Sub-Inspector in 1972. He was promoted as Police Inspector (“P. I.” for short) in 1993. He was sent to A.T.S. by an order dated May 5, 1993. He completed his tenure successfully in A.T.S. which was for one-and-half years and thereafter, as per the policy of the Government, he was given choice of posting as P. I., Surat City in December, 1994. Without any reason whatsover, within a short span of less than four months, he was transferred to Valsad in April, 1995. According to the petitioner, with a view to accommodate Mr. V.B. Raval, respondent No. 5 herein, again by an order dated September 2,1995, the respondent No. 5 was transferred to Valsad and the petitioner was asked to join A.T.S. That order is impugned by the petitioner in this petition.
3. It appears that the petitioner apprehended transfer and hence he approached this Court by filing Special Civil Application No. 6980 of 1995, on August 31, 1995. At the admission stage, this Court (Coram: M.R. Calla, J.) passed the following order on September 6, 1995:
“…The Learned Counsel for the petitioner, having argued the matter for some time, wants to withdraw the petition at this stage. The petition accordingly stands dismissed as withdrawn…
(emphasis supplied)
After the petition was disposed of, the petitioner has filed the present petition (Special Civil Application No. 7737 of 1995) on September 11, 1995. This petition also came up for hearing before the same Court and the following order was passed:
…Notice returnable by 18-9-1995. Direct service is permitted…”
Thereafter, the matter was placed for hearing before the Court from time to time and today the matter is argued before me.
4. Mr. B.P. Tanna, Learned Counsel for the petitioner, raised various contentions. He submitted that the impugned order is mala fide and passed in colourable exercise of power inasmuch as the authorities wanted to oblige respondent No. 5 and with a view to accommodate him, the action is taken. The petitioner was frequently transferred. He is having brilliant career and had completed his term of one-and-half years in A.T.S. Then choice posting was given to him at Surat. There was no earthly reason thereafter to transfer him within a period of four months and that action was unlawful. But as an obedient employee, the petitioner gracefully accepted it. By the impugned order, now the petitioner is again asked to join A.T.S. It is clearly illegal, improper, malicious and ultra vires. Mr. Tanna submitted that though serious allegations have been levelled against the respondents, no affidavit-in-reply is filed by the first respondent. Counter affidavit filed by other respondents does not specifically deal with averments and allegations levelled except bare and bald denial. My attention was invited by the Learned Counsel to family circumstances of the petitioner and also his (i.e. petitioner’s) own ill-heath. For that purpose, reliance was placed on medical certificates issued by Governmental authorities. It was argued that charge was taken ex parte from the petitioner in contravention of Rule 29 of the Bombay Civil Services Rules, 1959 and the said action was also contrary to law. A complaint is made that with a view to favour respondent No. 5, D.O. letters were written by superior officers which is not their usual practice. On all these grounds, there is prima facie case in favour of the petitioner. The petition requires to be admitted by issuing rule and by granting interim relief. Interim relief prayed by the petitioner in paragraph 7(B), reads thus:
…(7) The petitioner, therefore, prays:
xxx xxx xxx
(B) Pending the admission, hearing and final disposal of this petition, an interim injunction may kindly be granted staying the operation, implementation and execution of the order dated 2-9-1995 (Annex. A) and be pleased to restrain the respondents, their subordinates, superiors, agents and servants from causing any interference, obstruction, hindrance or hurdle in the petitioner discharging his duties as Police Inspector (Task Force) at Bulsar…
5. Mr. D.A. Bambhania, learned Additional Government Pleader, raised a preliminary objection as to the maintainability of the petition. According to him, the present petition is barred by res judicata, or, by constructive res judicata. In the alternative, it was aruged that having filed a petition earlier and having it withdrwan, it is now not open to the petitioner to file a fresh petition. Such petition is barred by principle analogous to withdrawal or abandonment under Order 23 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”). On merits, Mr. Bambhania submitted that no case has been made out by the petitioner. An action transferring the petitioner to A.T.S. was taken in public interest and that fact is reflected in the order itself. The petition, therefore, does not require admission. Mrs. K.A. Mehta, Learned Counsel appearing for the respondent No. 5 adopted the arguments of Mr. Bambhania. She further submitted that the petition is not maintainable in the light of the provisions of Section 12 read with Order 23, Rule 1 of the Code. On merits, supporting Mr. Bambhania, she submitted that no case has been made out by the petitioner for admission of the petition.
6. Two questions arise for my considerations. Firstly, whether the present petition is barred by res judicata or constructive res judicata or the petitioner is precluded from filing the second petition on principle analogous to Order 23 Rule 1 of the Code. Secondly, whether prima facie, an order of transfer is illegal, mala fide or otherwise unlawful.
7. Now, so far as doctrine of res judicata or constructive res judicata is concerned, in my opinion, submission of Mr. Tanna is well-founded that neither doctrine of res judicata recognised under Section 11 of the Code nor analogous to res judicata would apply in the instant case. As seen earlier, previous petition came to be withdrawn by the petitioner. The order extracted hereinabove clearly shows that the Court granted permission to withdraw the petition. In my opinion, when the petition was withdrawn it cannot be said that the matter was heard and finally decided as contemplated by Section 11 of the Code. Nor such a decision can be said to have been given “on merits”. As held by the Constitution Bench of the Supreme Court in the leading case of Daryao and Ors. v. State of U.P. and Ors., , if a petition is withdrawn, it would not operate as res judicata. Hence, the doctrine of res judicata simpliciter cannot apply to the case on hand.
8. Likewise, the principle of constructive res judicata also does not apply. Constructive res judicata is explained in Explanation IV to Section 11 of the Code. A case may fall within the mischief of Explanation IV only when the doctrine of res judicata applies and not otherwise. It is an artificial form of res judicata. That Explanation covers those cases in which, a point could have been taken by a party in earlier proceeding. When a point which ‘might’ and ‘ought’ to have been taken was not taken, Explanation IV comes into play and provides that such plea would not be allowed to be agitated in a subsequent proceeding. But in that case also, the decision must be a final decision on merits after hearing the parties. In the instant case, the petition was withdrawn and was not decided on merits. As observed in Daryao’s case (supra), an order of withdrawal falls outside the category of cases in which the doctrine of res judicata can be invoked. Hence, in my opinion, neither doctrine of res judicata nor constructive res judicata applies in the facts and circumstances of the present case. In view of this finding, it is not necessary for me to deal with Explanation to Section 141 of the Code, which engrafts an exception to application of the provisions of the Code to proceedings under Article 226 of the Constitution.
9. But then, the question is as to what is the effect of withdrawal of previous petition. Counsel for the petitioner contended that once this Court is of the opinion that doctrine of res judicata or constructive res judicata does not apply to a petition permitted to be withdrawn by the Court, ‘shadow’ or ‘ghost’ of res judicata totally disappears and the matter is wide open and it is for this Court to consider whether in the facts and circumstances of the case, present petition should be enterained and relief should be granted to the petitioner. The jurisdiction of the Court, however, is unlimited and not, restricted, hampered or curtailed in any manner whatsoever. Counsel for the respondents, on the other hand, submitted that there is misconception on the part of the petitioner in equating two principles, viz., res judicata and waiver. According to them, even if second petition may not be barred by doctrine of res judicata or constructive res judicata, the petitioner may be precluded from challenging an action on the ground that in past such action was initiated, but it was withdrwan. According to the respondents, the petitioner had approached this Court by filing a petition. All the facts which are sought to be placed now and all contentions sought to be advanced before this Court, were in existence at that time also and inspite of those facts, this Court did not think it fit to entertain the petition and the petitioner withdrew it. It is, therefore, not open to the petitioner to play second innings by filing a fresh petition and such petition would be barred on the principle of waiver or abandonment of a claim analogous to 0.23 of the Code. Hence, the question is as to whether second petition is barred on the ground, that the petitioner had withdrawn previous petition. Mr. Tanna contended that the order passed by this Court in previous petition is explicitly clear. Putting emphasis on the words “at this stage”, it was submitted that the Court had granted liberty to the petitioner to file fresh petition. Though that fact was not specifically and explicitly stated in the order, the connotation “at this stage” makes that position clear. Mr. Tanna also drew my attention to the fact that the relief prayed in previous petition was different than the relief prayed in this petition. The circumstances were also different. That petition was filed on August 31, 1995 against apprehended action and the order impugned in the present petition had not seen the light of the day as the order was passed on September 2, 1995 after institution of the petition. Thus, it was a premature petition. He also stated that subsequently when the petitioner came to know about passing of the order, a draft amendment was submitted giving date and number of order. But, even at that time, the petitioner had not received copy of the order. Now, in the light of those facts, if the petition was permitted to be withdrawn, it cannot be contended that the petition was withdrawn since the Court was not inclined to admit it. But it must be construed that the petition was premature as the copy of the impugned order was not received by the petitioner and was not produced on record. In other words, according to Mr. Tanna, it must be held that when the petition came up for hearing, in view of the fact that inpugned order was not made part of the petition, the Court was of the view that the petition was premature. In absence of the inpugned order, which the petitioner wanted to get quashed, a prayer was made to withdraw the petition which was granted. It was submitted that precisely because of these reasons, when the petitioner filed present petition and it was placed for admission, the same Court issued notice. Under the circumstances, the matter is fully and completely open and previous withdrawal order will not come in the way of the petitioner in getting an appropriate relief to which he is otherwise entitled.
10. In my opinion, though doctrine of res judicata or constructive res judicata does not apply to the facts of the case, the principle of waiver and abandonment of claim will certainly come in the way of the petitioner in prosecuting this petition and this Court will indeed consider the fact that at an earlier occasion, the petitioner had filed a petition wherein legality and validity of the impugned order was challenged and that it was withdrawn by him. The said fact is relevant and material and cannot be ignored.
11. A similar question arose before the Hon’ble Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior& Ors., . In that case, a petition was filed by the petitioner in the High Court of Madhya Pradesh under Articles 226 and 227 of the Constitution. When the petition was taken up for hearing the High Court passed the following order:
…Shri Y.S. Dharmadhikari, Learned Counsel for the petitioner seeks permission to withdraw the petition. He is permitted to do so. The petition is dismissed as withdrawn…
Thereafter, once again a fresh petition was filed. It was contended by the respondents that such a petition would be barred by res judicata, but that contention was negatived by the Supreme Court relying upon a decision in Daryao’s case (supra). However, considering the provisions of Order 23, Rule 1 of the Code and public policy underlying the said doctrine, the Court observed:
…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’s case (supra) 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 interest 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 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 since such withdrawal does not amount to res judicata the remedy under Article 226 of the Constitution 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…
(emphasis supplied)
Mr. Tanna drew my attention to a decision of the Constitution Bench of the Supreme Court in Joseph Pothen v. State of Kerala, AIR 1965 SC 1514. In that case, a petition was filed by the petitioner, which came up for hearing before a single Judge of the High Court of Kerala who dismissed it on the ground that disputed questions of fact were involved in the petition, which could be appropriately dealt with and decided by filing a civil suit. An appeal against that order also met with the same fate before the Division Bench. When a petition was filed in the Supreme Court under Article 32 of the Constitution, it was contended by the authorities that the petition was barred by res judicata. Negativing the contention, the Court stated-
…It is, therefore, clear that the Kerala High Court did not go into the merits of the petitioner’s contentions, but dismissed the petition for the reason that the petitioner had an effective remedy by way of a suit. Every citizen whose fundamental right is infringed by the State has a fundamental right to approach this Court for enforcing his right. If by a final decision of a competent Court his title to property has been negatived, he ceases to have the fundamental right in respect of that property and, therefore, he can no longer enforce it. In that context the doctrine of res judicata may be invoked. But where there is no such decision at all, there is no scope to call in its aid. We, therefore, reject this contention…
12. In my opinion, Joseph Pothen’s case (supra) cannot carry the case of the petitioner any further. In that case, the Supreme Court held that when previous petition was dismissed on the ground of alternative remedy, such decision cannot operate res judicata in a subsequent petition. But in the instant case, I have already held that earlier order passed in previous petition would not operate res judicata in present proceedings. Hence, the ratio in Joseph Pothen’s case (supra) is not of much help to the petitioner.
13. Mr Tanna, no doubt contended that the Court in previous petition permitted withdrawal by using the expression “…at this stage…” meaning thereby that according to the Court the petition was premature in absence of production of the copy of order of transfer. Such withdrawal will not preclude the petitioner from filing a petition when cause of action accrues. As far as the order passed by the Court is concerned, it is not in dispute that such fact is not recited in the order. On the contrary, it appears that the petitioner had argued the matter and agitated the points raised in the petition, which is reflected in the order itself by the use of expression “…having argued the matter for some time…” In my opinion, it is not proper on my part, sitting as a co-ordinate Court either to add anything to that order or to substract something from what is stated in black and white. The Learned Counsel for the petitioner made a request to this Court to adjourn the hearing of this petition for some time so as to enable the petitioner to file a note for “Speaking to Minutes” before the same Court. I granted the request. Thereafter a note for “Speaking to Minutes” was filed and the Court passed the following order on October 19, 1995:
…The order for which this matter was moved for Speaking to Minutes was passed on 6-9-1995. In the application for Speaking to Minutes, several factual aspect have been raised and it is not possible for this Court to give the clarification as sought in this note. Learned Counsel, therefore, seeks to withdraw this note of minutes. The request in the note of minutes is, therefore, declined and rejected accordingly…
Thus, from totality of the facts and circumstances, it can neither be said that the previous petition was permitted to be withdrawn by the Court as according to the Court the petition was premature nor it can be inferred that the Court granted liberty to file a fresh petition. It is no doubt true that the petitioner had withdrawn the petition at that stage, but it does not follow that by using the expression “at this stage” the Court impliedly allowed the petitioner to have a second chance by placing the impugned order on record. From the above discussion, it is established that a petition was filed by the petitioner earlier. It was against apprehended action of transfer of the petitioner to A.T.S. Though initially order was not made, but subsequently the order was passed. An amendment was sought. Date and number of the order were also given to the Court by draft amendment which was granted. The matter was “argued for some time” and only thereafter the petitioner’s Counsel prayed for withdrawal of petition which was granted by the Court. In my opinion, precisely in such cases, the ratio laid down by the Honourable Supreme Court in Sarguja Transport Service’s case (supra) would apply and the Court would not permit the petitioner to re-agitate all the points and contentions raised earlier on the ground of waiver and abandonment of claim and also on the basis of public policy with a view to prevent the abuse of process of Court. In my considered opinion, having argued the matter, when the petitioner withdrew the petition, it can be said that the petitioner abandoned that cause. He cannot now be heard to say that despite earlier proclamation, he wishes to persist in raising the same issue in the present petition.
14. I therefore, hold that the present petition is not maintainable. It is true that some actions were taken after withdrawal of previous petition, such as taking of charge unilaterally, which according to the petitioner is contrary to Rule 29 of the Bombay Civil Services Rules. But since I am of the view that there is abandonment or waiver on the part of the petitioner in withdrawing previous petition and present petition is not maintainable, the petitioner is not entitled to any relief against actions which are consequential in nature.
15. In view of above finding, it is not necessary for this Court to deal with and decide the merits of the matter even though the matter was argued at length. I am not dealing with contention of mala fide or colourable exercise of power by the respondent authorities.
16. Regarding ill-health of the petitioner, it was submitted that because of his sickness it is not advisable for him to join A.T.S. In Mussorie, the petitioner suffered heart attack. He was hospitalised and even after returning from Mussorie, he was admitted in Surat Hospital. Medical certificates are also produced by the petitioner. Mr. Tanna submitted that though the petitioner has not made representation, he is willing to make representation to the respondents pointing out all the facts and circumstances and by submitting necessary medical certificates so that the petitioner may not be compelled to join A.T.S. which may seriously affect his health and may prove fatal. It is directed that if such representation is made by the petitioner, the authorities will consider the same in its proper perspective and to take appropriate action in accordance with law. Ultimately, even according to the respondents, the petitioner has taken interest in administration, is discharging his duties properly and the authorities intend to ultilise services of the petitioner. As model and ideal employer, it is expected of the State Government to take into consideration well-being and proper health of its employees. The Learned Counsel for the petitioner states that the petitioner is on leave. He states that the petitioner will submit his representation before November 15, 1995. It is, therefore, directed that if such a representation is made, the authority will decide the same sympathetically and as expeditiously as possible, preferably within four weeks from the date of the receipt of the representation. The Counsel also states that the petitioner is willing to be posted at Surat, where he was posted earlier. It is open to the petitioner to make such offer in his representation and the authority will also consider it. Till disposal of the representation, the petitioner is permitted to remain on leave.
17. For the aforesaid reasons, I do not see any substance in any of the arguments of the Learned Counsel for the petitioner and the petition requires to be dismissed and accordingly is dismissed. Notice is discharged. In the facts and circumstances of the case, there is no order as to costs.