Dismissed

Himani Malhotra v. Indraprastha College for Women & Anr.

Delhi HC2 Jan 2018W.P.(C)/11251/2017

Case brief

AI extract

What is this about?

The court dismissed a writ petition challenging the validity of the college governing body's constitution and its power to initiate inquiry against a suspended professor. The court held that the petitioner had earlier waived this ground in an agreed order of a previous petition and was estopped from raising it again.

What did the court decide?

Petition and applications challenging the validity of the governing body's minutes are dismissed as misconceived.

Himani Malhotra Vs Indraprastha College for Women & Anr. — Service and Employment | Delhi HC (2018)

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of Decision: January 02, 2018

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W.P.(C) 11251/2017 & C.Ms. 45985-86/2017

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HIMANI MALHOTRA ..... Petitioner Through: Mr. G. Tushar Rao & Mr. Mayank Sharma, Advocates

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Versus

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INDRAPRASTHA COLLEGE FOR WOMEN & ANR.

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.....Respondents

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Through: Mr. Rajesh Gogna, Ms. Vipra Bhardwaj & Mr. Akhilesh Kumar, Advocates for respondent No.1 Ms. Slomita Rai, Advocate for Mr. Mohinder J.S. Rupal, Advocate for respondent- Delhi University

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QUORAM: HON'BLE MR. JUSTICE SUNIL GAUR

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JUDGMENT

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The question which falls for consideration in this petition is, whether a person can assert a right which stood relinquished earlier.

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Petitioner is a suspended Assistant Professor, who was appointed against a permanent post on 29^th September, 2010 in the Department of Physical Education by respondent-College. In pursuance to Show Cause Notice of 28^th July, 2012, petitioner was put under suspension on 21^st August, 2012, after respondent-University granted its approval on 13^th August, 2012. It is not disputed that petitioner in earlier round of

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W.P.(C) 11251/2017

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litigation had unsuccessfully challenged the impugned Show Cause Notice of 28^th July, 2012, Suspension Order of 21^st August, 2012 and approval of 13^th August, 2012 granted by respondent-University. Petitioner’s earlier writ petition W.P.(C) 5758/2012 laying challenge to the aforesaid Show Cause Notice of 28^th July, 2012 was disposed of vide order of 5^th July, 2013 (Annexure P-7) with directions to conclude the inquiry within a stipulated time frame. It is relevant to note that the challenge to the impugned Show Cause Notice of 28^th July, 2012 and petitioner’s Suspension Order of 21^st August, 2012 was not adjudicated on merits by this Court in its order of 5^th July, 2013.

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In this petition, challenge is to the initiation of inquiry by respondent-College on the ground that the governing body of respondentCollege was not validly constituted and that it was not having the requisite quoram. Quashing of Minutes of Meeting of 25^th July, 2012 of respondent- College; Resolution passed by its governing body in the meeting on 27^th July, 2012 to issue Show Cause Notice to petitioner; Governing Body’s Minutes of Meeting of 7^th August, 2012 rejecting petitioner’s reply to Show Cause Notice and issuance of Suspension letter of 21^st August, 2012, is sought by petitioner. A challenge is also laid to the Minutes of Meeting of 12^th September, 2012 whereby the Inquiry Officer was appointed.

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At the outset, learned counsel for respondent-College raises objection to the maintainability of this petition by submitting that this petition is impliedly hit by principle of res judicata . Learned counsel for respondent-College draws the attention of this Court to a copy of earlier writ petition W.P.(C) 5758/2012 (Annexure P-6 colly) to point out that

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W.P.(C) 11251/2017

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petitioner had also taken the ground of respondent-College’s Governing Body being truncated as it comprised of five members only. It is submitted by learned counsel for respondent-College that in pursuance to the Show Cause Notice of 28^th July, 2012, a fresh inquiry has been initiated and petitioner has been participating for the past four years and filing of multiple petitions is unduly prolonging the inquiry proceedings, as the plea of respondent- College’s governing body being truncated was urged earlier also. So, it is submitted that the objection of governing body of respondent-College being truncated stood abandoned/ waived.

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Learned counsel for respondent-College submits that the basis to file the instant writ petition, as spelt out in Paragraph No.3 (p) of the writ petition, cannot provide a fresh ground to petitioner to forestall the inquiry against her. Reliance is placed upon Supreme Court’s decision in Beerbal Singh (D) through LRS Vs. State of U.P. & Ors. 2017 SCC OnLine SC 688 by counsel for first respondent to submit that filing of second writ petition on the same cause of action is not only misconceived but is an ill advised action. Reliance is also placed upon another Supreme Court’s decision in Orissa Power Transmission Corporation Limited & Ors. Vs. Asian School of Business Management Trust & Ors. (2013) 8 SCC 738 to submit that when the prayer is substantially similar, dismissal of the first petition would operate as res judicata. Counsel for first respondent also places reliance upon Supreme Court’s decision in State of Punjab Vs. Davinder Pal Singh Bhullar 2012 AIR (SC) 364 to submit that waiver is an intentional relinquishment of a right.

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On the other hand, learned counsel for petitioner maintains that the issue of respondent-College’s governing body being truncated was not

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W.P.(C) 11251/2017

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earlier adjudicated upon and so, it is not hit by res judicata or constructive res judicata. Counsel for petitioner also submits that there is no question of any relinquishment or waiver, as petitioner for the first time had come to know about the requisite quoram of college’s governing body being fifteen in October, 2017 from the pleadings in W.P.(C) 616/2013. It is further submitted that the question of respondentCollege’s governing body being not validly constituted and of not having requisite quoram, goes to the root of the matter and since governing body was not validly constituted, therefore, initiation of disciplinary proceedings against petitioner is void ab initio.

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After having heard counsel representing both the sides on the aspect of maintainability of this petition and on perusal of material on record and decisions cited, I find that the plea of respondent-College’s governing body being truncated was specifically taken by petitioner in the earlier round of litigation. It is evident from the order of 5^th July, 2013 (Annexure P-7) passed in earlier round of litigation, that instead of asserting the plea of respondent- College’s governing body being truncated, petitioner herein had agreed to get the earlier writ petition disposed of with direction to conclude the disciplinary proceedings within a particular time frame.

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Since the order of 5^th July, 2013 passed in the earlier writ petition W.P.(C) 5758/2012 was an agreed order, therefore, there is no escape from the conclusion that petitioner had intentionally waived the right to challenge the initiation of disciplinary proceedings on the ground of respondent-College’s governing body being truncated. Supreme Court in Davinder Pal Singh Bhullar (supra) has reiterated that waiver is an

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W.P.(C) 11251/2017

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intentional relinquishment of right. Once petitioner has agreed to conclusion of disciplinary proceedings within a particular time frame, then the logical conclusion is that she had intentionally waived her right to challenge the initiation of disciplinary proceedings, in which she is participating now. In such a situation, petitioner cannot be now permitted to turn around amidst inquiry to reagitate the plea which she had earlier waived. It is impermissible to do so, even if some material has now come to light.

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In the light of aforesaid, this Court finds that petitioner’s challenge to impugned minutes of meetings of respondent-College’s governing body, is not maintainable, as petitioner had made an attempt to do so in the earlier round of litigation in W.P.(C) 5758/2012 and because it is evident from the order of 5^th July, 2013 (Annexure P-7) that the said challenge was not taken to its logical end. Rather, petitioner had agreed to get the earlier writ petition W.P.(C) 5758/2012 disposed of with directions to conclude the inquiry proceedings within a particular time frame.

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Consequentially, this petition and applications are dismissed as misconceived.

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SUNIL GAUR (JUDGE)

JANUARY 02, 2018

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W.P.(C) 11251/2017

Himani Malhotra v. Indraprastha College for Women & Anr.

Case brief

What is this about?

What did the court decide?

Himani Malhotra v. Indraprastha College for Women & Anr.

Case brief

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What did the court decide?

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