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Judgment
Jayant Patel, J.—Admit. Mr. Chauhan, learned Counsel for the Respondent, waives service of notice of admission. The matter is finally heard today.
The present appeal arises against the order dated 10.5.2010 passed by the learned Single Judge of this Court in Special Civil Application No. 5868 of 2010, whereby the learned Single Judge has dismissed the petition.
Heard Mr. Shah, learned Counsel for the Appellant - original Petitioner and Mr. Chauhan, learned Counsel for the Respondent.
It is undisputed position that the show-cause notice was issued for recovery of the amount of honorarium for the project at Ahmedabad in the year 2003. Thereafter, the decision was taken for recovery of the amount on 10.12.2008. Thereafter, the first petition was filed being Special Civil Application No9.2310 of 2009 and the same was withdrawn vide order dated 16.3.2009 with liberty to file a fresh petition. It is also undisputed position that thereafter the original Petitioner - Appellant herein preferred SCA No. 3114 of 2009 and the learned Single Judge of this Court, vide order dated 23.6.2009, issued following directions at paragraph 7:
In view of the above and for the reasons stated above, both the petitions succeed in part. The impugned Notifications dated 10.12.2008 are hereby quashed and set aside and let the concerned Respondent serve show-cause notice upon the Petitioners and the Petitioners submit reply to the same within a period stated herein above and thereafter the concerned Respondents to pass appropriate order in accordance with law and on merits considering the reply that may be submitted by the respective Petitioners and communicate the outcome of the same to the Petitioners. It goes without saying that if any adverse decision is taken in that case, it will be open for the respective Petitioners to challenge the same, which shall be considered in accordance with law and on merits. ....
It is also undisputed position that thereafter on 15.8.2009, show-cause notice has been issued, copy whereof is produced at Annexure-A of the main SCA. It is also undisputed position that thereafter no decision is taken or is placed on record showing that competent authority had applied mind and it was decided to recover the amount. Since no decision was taken, the original Petitioner, through his Advocate addressed a notice to the concerned authority of the University and in response thereto, vide letter dated 18.2.2010, the communication was addressed to the Advocate by the Registrar of the University. At that stage, the Petitioner had preferred petition before the learned Single Judge.
The learned Single Judge, at paragraphs 5 and 6, has concluded that the petition was filed after a period of more than seven years and as per the decision of the Apex Court in the case of Shiv Dass Vs. Union of India (UOI) and Others, if the petition is preferred after a period of three years, normally the Court would reject the same or restrict the relief.
In our view, the finding recorded for delay of seven years cannot be sustained for the simple reason that when the decision was taken for the first time on 10.12.2008, petition was already filed in the year 2009 being SCA No. 3114/2009 and thereafter, there was no decision whatsoever taken for recovery of the amount.
Mr. Chauhan, learned Counsel appearing for the Respondent is not in a position to show any decision taken or produced in the paper of the SCA. Under these circumstances, in absence of any decision taken for recovery of the amount, it could not be concluded that there was delay of seven years in preferring the petition.
The another aspect considered by the learned Single Judge at paragraph 7 of the impugned order is that the petition was barred by constructive res judicata. The principles of constructive res judicata are expressly provided by Explanation 4 of Section 11 of CPC Code. The pertinent aspect is that for applicability of any principles of res judicata, including constructive res judicata, there has to be a decision on record by the competent Court. In the present case, there was no decision whatsoever of the authority and so far as the decision of the Court is concerned, the only decision available on merits was dated 23.6.2009, by which the action of recovery was set aside and thereafter it was observed that a fresh show cause notice might be given and the reply might be submitted and the decision might be taken thereafter by the competent authority. Under these circumstances, the finding recorded that the petition was barred by principles of constructive res judicata could not be sustained.
Mr. Chauhan, learned Counsel for the Respondent is also not in a position to show any decision of any Court, whereby the principles of constructive res judicata can be applied. It further appears that there is reference to SCA No. 2310 of 2009 made in the impugned order at paragraph 4. If the order passed in SCA No. 2310 of 2009 is considered, the same is for withdrawal of the petition with a liberty to file a fresh petition with the correct typed annexure and the Court has also granted permission for such purpose. Therefore, when express permission was granted with liberty to file petition afresh and thereafter when the fresh petition being SCA No. 3114 of 2009 was preferred, it is not possible to hold that the petition was barred by constructive res judicata.
The aforesaid takes us to examine the observations made in the impugned order at paragraph 6 on merits of the case. It appears that the observations made on merits of the case are not pertaining to any decision taken by the competent authority of the University for recovery of the amount of honorarium. But they pertains to the communication made by the University to the Advocate of the Petitioner. As observed, even as on today, Mr. Chauhan is not in a position to show that any decision was taken by the University for recovery of the amount after the order dated 23.6.2009 was passed by this Court in SCA No. 3112 of 2009. Therefore, the observations made in the impugned order that there was no illegality or impropriety having been committed by the Respondent for recovery of the amount of honorarium cannot be sustained.
In the result, the impugned order passed by the learned Single Judge deserves to be quashed and set aside and hence, the same is quashed and set aside. However, in absence of any decision taken by the competent authority of the University, the only direction, which could have been given in the main Special Civil Application to the University to pay the amount, which has been wrongly recovered or withheld in absence of any decision of the competent authority of the University.
At that stage, Mr. Chauhan, learned Counsel appearing for the Respondent University declared that the decision shall be taken within a period of one month from today and the same shall be communicated to the original Petitioner - Appellant herein. Hence, we leave the matter at that stage with the direction that the University shall examine all the aspects and competent authority of the University shall take appropriate decision as declared before this Court and communicate the decision to the original Petitioner.
It is observed further that if the decision is to pay the amount already withheld, the same shall be actually paid to the original Petitioner or in alternative, if the decision is to recover the amount, which is already withheld, the original Petitioner shall be at liberty to challenge the same in accordance with law by resorting to appropriate proceedings, since such decision will be a fresh cause of action.
The Letters Patent Appeal is allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs.