EASTERN COALFIELDS LIMITED Vs. YUDHISTIR MALAKAR & ORS

JUDGEMENT

(1.) Under challenge in this appeal is the judgment and order of the learned Trial Court dated 4th February, 2013 in C.O. No.1177 (W) of 1996 (for short 'W.P.II'). By the order impugned, the learned Trial Court was pleased to, inter alia, direct the present appellant/the respondent in the writ petition/Eastern Coalfields Limited (for short 'ECL') to release all retiral benefits in favour of the writ petitioner/respondent in the appeal from the date of his retirement on 12th December, 2008. The learned Trial Court also directed payment of back wages at the rate of 50% in favour of the writ petitioner/respondent, since the writ petitioner was found not to have performed his duties from the date of his dismissal, that is, with effect from 11/12.11.1992 till the date of his retirement.

(2.) Aggrieved by the aforesaid order, Mr. Arijit Chaudhuri, learned Senior Counsel, appearing for the appellant/ECL, principally focuses his argument on the point of maintainability of W.P.II. Mr. Chaudhuri submits that W.P.II is not maintainable having regard to the provisions of Order XXIII Rule 1 of the Code of Civil Procedure and the principles analogous thereto.

(3.) It is submitted that W.P.II was filed in the face of the admitted fact that the first writ petition, also of the present petitioner, being C.O. No.13850 (W) of 1994 (for short 'W.P.I'), was allowed to be withdrawn by a Hon'ble Single Bench (as His Lordship then was) vide order dated 30th August, 1995. Taking this Court to the order dated 30th August, 1995, which is also referred to by the learned Trial Court in the judgment impugned dated 4th February, 2013, learned Senior Counsel points out that no leave was granted in terms of Order XXIII Rule 1 to the writ petitioner to enable him to file W.P.II. The provisions of Order XXIII Rule 1 mandate the grant of an explicit leave from the Court from which the proceeding even in the nature of a writ petition, is sought to be withdrawn and, in the absence of such leave, a second writ petition on the same cause of action is not maintainable.