Calcutta HC: State Not Barred from Fresh Charge Memo After Withdrawing Defective One Without Liberty Clause

The Calcutta High Court held that Order 23 Rule 1 CPC does not prevent disciplinary authorities from issuing a fresh charge memo after withdrawing a procedurally defective one before the West Bengal Administrative Tribunal, where the substance of the charges was never challenged.

A Division Bench of the High Court at Calcutta, comprising Justice Madhuresh Prasad and Justice Prasenjit Biswas, dismissed a writ petition filed by a State government employee who argued that a fresh charge memo issued against him in 2022 was barred because the earlier charge memo had been withdrawn before the West Bengal Administrative Tribunal without any liberty being reserved to proceed afresh. The court held that Order 23 Rule 1 of the Code of Civil Procedure operates against a plaintiff who withdraws a suit, not against the opposite party, and that the State authorities could not be prevented from complying with the mandatory procedure under Rule 10 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. The judgment, delivered on 22 May 2026, affirms the Tribunal's dismissal of the employee's second original application.

The Disciplinary Proceedings and the Tribunal's Earlier Order

The writ petitioner, Gitesh Das Mahapatra, was a State government employee against whom departmental proceedings were initiated under the West Bengal Services (Classification, Control and Appeal) Rules, 1971. A charge memo dated 08.08.2014 was served on him. He challenged it before the West Bengal Administrative Tribunal in O.A. No. 282 of 2017, contending that the charge memo enclosed only a draft article of charge rather than a proper article of charge as required under Rule 10 of the 1971 Rules.

The authorities, on realising the error, had already issued a fresh communication dated 07.09.2015 containing proper articles of charge. The petitioner disputed service of that communication. When the first Original Application came up before the Tribunal, the State took an unusual position: rather than contest the service dispute, it submitted that it did not wish to proceed on the basis of either the charge memo dated 08.08.2014 or the communication dated 07.09.2015, and instead wanted to issue a fresh charge sheet. The petitioner opposed even this concession.

The Tribunal, by its order dated 31.03.2022, disposed of the first Original Application as infructuous. It recorded that the respondents had themselves stated they did not want to proceed with the charge sheet dated 08.08.2014 or the communication dated 07.09.2015, and that a second show-cause notice proposing punishment dated 30.11.2021 had also become infructuous. Critically, the Tribunal did not grant any liberty to the State to proceed afresh, nor did the State counsel give any undertaking that a fresh charge memo would not be issued.

Shortly thereafter, the petitioner was served with a fresh charge memo dated 22.04.2022. He filed a second Original Application, O.A. No. 307 of 2022, before the Tribunal seeking quashing of that charge memo, regularisation of his suspension period from 29.04.2013 to 16.04.2017, and payment of full salary and allowances for that period. The Tribunal found no merit in the second Original Application and dismissed it on 15.05.2025. That dismissal was challenged before the High Court in W.P.S.T. 185 of 2025.

The Petitioner's Argument: Order 23 Rule 1 as a Bar

Before the High Court, Mr. Bikash Ranjan Neogi, appearing for the petitioner, argued that the Tribunal's order dated 31.03.2022 in the first Original Application operated as a bar to the fresh charge memo. His case rested on the principle drawn from Order 23 Rule 1 of the CPC: when a party withdraws or abandons a proceeding without obtaining leave of the court to institute a fresh proceeding on the same subject matter, it is precluded from doing so.

The petitioner's counsel submitted that although the State had sought liberty to proceed afresh, no such liberty was granted by the Tribunal in its order dated 31.03.2022. The charge memo dated 22.04.2022 was therefore, he argued, an impermissible fresh proceeding on the same subject matter. He relied on the Supreme Court's decision in Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior and Others, reported in 1987 (1) SCC 5, in support of the proposition that Order 23 Rule 1 applies to Tribunal proceedings as well.

The petitioner also submitted that he had been deprived of service benefits from the issuance of the charge memo dated 08.08.2014 till date, and that the Tribunal ought to have set aside the charge memo dated 22.04.2022 on that basis as well.

The State's Response: Substance of Charges Never Challenged

Mr. Amal Kr. Sen, learned Additional Advocate General for the State, advanced a two-pronged response. His primary submission was that the subject matter of the first Original Application was strictly limited to a procedural defect: the charge memo dated 08.08.2014 had enclosed a draft article of charge instead of a proper article of charge as required by Rule 10 of the 1971 Rules. The petitioner had never challenged the competence of the authority issuing the charge memo, nor had he contested the substance of the allegations on merit.

The learned AAG drew the court's attention to paragraphs 6.10 to 6.17 of the first Original Application, which the petitioner's own counsel had placed on record. Those paragraphs, he submitted, confirmed that the challenge was confined to the procedural prescription requiring a proper article of charge rather than a draft. The petitioner had also filed a representation dated 30.01.2017 prior to approaching the Tribunal, which similarly highlighted only the procedural prescription regarding service of articles of charge.

The second submission was that Order 23 Rule 1 CPC, even if applicable, operates against a plaintiff who withdraws a suit — not against the opposite party. The State was the respondent before the Tribunal, not the applicant. The provision could not, therefore, preclude the State from issuing a fresh charge memo. The learned AAG relied on the Supreme Court's decisions in Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and Others, reported in (2013) 5 SCC 427, and Vipulbhai Mansingbhai Chaudhary v. State of Gujarat and Another, reported in (2017) 13 SCC 51, in support of the position that there can be no estoppel against the law or public policy, and that the authorities cannot be precluded from taking action in terms of the 1971 Rules framed under the proviso to Article 309 of the Constitution of India.

How the Division Bench Reasoned

The Division Bench accepted the State's submissions in full. It began by examining what the first Original Application had actually put in issue. The court found that the writ petitioner had challenged only the fact that a draft article of charge was served instead of a proper charge memo. Neither the competence of the authority issuing the charge memo nor the substance of the allegations was raised. The limited relief sought in the first Original Application was setting aside of the charge memo dated 08.08.2014 containing draft charges, along with a consequential direction to treat the petitioner as a regular revenue officer.

The court then examined the Tribunal's order dated 31.03.2022 carefully. It noted that the State counsel had given up only the charge memo dated 08.08.2014, the communication dated 07.09.2015, and the show-cause notice of proposed punishment dated 30.11.2021. No undertaking was given that a fresh charge memo would not be issued. The Tribunal recorded this concession and disposed of the first Original Application as infructuous, but did not grant any liberty to proceed afresh.

On the Order 23 Rule 1 argument, the bench held that the provision contemplates abandonment of a relief by a plaintiff against a defendant, not the other way around. The State was the respondent in the first Original Application. A plain reading of Order 23 Rule 1 left no room for the interpretation that the defendants could be barred from raising any issue or taking any action. The petitioner's reliance on the provision was therefore misplaced.

The court also addressed the Sarguja Transport Service judgment relied upon by the petitioner. It held that the principles discussed in that decision apply only where a litigant institutes proceedings again and again for the same cause of action without good reason. No such facts were present here. The State was not re-agitating the same defective charge memo; it had issued an entirely fresh charge memo dated 22.04.2022 after the earlier proceedings were disposed of.

The bench then addressed the mandatory character of Rule 10 of the 1971 Rules. It observed that once the Disciplinary Authority forms an opinion under Rule 9 that grounds exist for proceeding against an employee, Rule 10 mandates that a charge memo “shall” be served on the concerned employee. The procedural prescription from Rule 10 through to the conclusion of the disciplinary proceeding is mandatory and cannot be compromised by any authority. The compliance with principles of natural justice is inherent in this procedural framework. The State's concession in the first Original Application had to be read in this context: the authorities had fairly conceded that a draft article of charge was served, but that concession could not be stretched to mean that they were permanently barred from complying with the mandatory procedure under Rule 10.

Applying the Supreme Court's reasoning in Vipulbhai Mansingbhai Chaudhary and Rajasthan State Industrial Development and Investment Corporation, the bench held that there can be no estoppel against the law or public policy. The authorities could not be precluded from taking action in terms of the 1971 Rules framed under the proviso to Article 309 of the Constitution of India.

The court also rejected the petitioner's broader submission that the concession recorded in the Tribunal's order should operate as a permanent bar to any future charge memo. It held that the writ petitioner could not be permitted to rely on such a concession so that it would operate as a bar to any future charge memo being issued against a government employee, particularly when the substance of the allegations in the charge memo dated 08.08.2014 was neither raised by the petitioner nor considered by the Tribunal in the first Original Application.

Outcome

The Division Bench found no reason to interfere with the proceedings initiated on the basis of the charge memo dated 22.04.2022. It held that the Tribunal had rightly rejected the petitioner's second Original Application and that the Tribunal's order dated 15.05.2025 did not warrant any interference in exercise of the extraordinary and discretionary writ jurisdiction under Article 226 of the Constitution of India. The writ petition was dismissed as devoid of merit. The court directed that urgent certified copies of the judgment be supplied to the parties expeditiously after compliance with necessary legal formalities.