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2004 DIGILAW 228 (GUJ)

PRAVIN NATHALAL SHAH v. GOVERNMENT OF INDIA

2004-03-31

RAVI R.TRIPATHI

body2004
RAVI R. TRIPATHI, J. ( 1 ) THE matter is notified along with Special Civil Application Nos. 3570/1998, 4014/1998, 9066/1998 and 3226/1998. But then, as the learned Advocates submitted that this matter has nothing common except that the action of prescribing the cut off date is under challenge along with the validity of the Rule, by which such cut off date is prescribed, at the request of the learned Advocates for both the sides, this petition is heard separating it from the group. ( 2 ) THE present petition is filed by two individuals along with LIC Class-I Retired Officers Association being the third petitioner, challenging rule (9) of the Notification issued by the Government of India dated 18th July, 1996 and also Instruction No. 11 issued by the respondent-Corporation dated 19th July, 1996 whereby the petitioners and other similarly situated officers, who happened to be the members of petitioner no. 3-Association are denied the benefit of gratuity on the basis of revised scales from 1st August, 1992 as they retired between 1st August, 1992 and 31st July, 1994. ( 3 ) EARLIER, the very association i. e. petitioner no. 3 herein had approached this Court by filing Special Civil Application No. 7900 of 1996 contending that the action of the respondent of prescribing "1st August, 1994" as the cut off date for the purpose of calculating gratuity is arbitrary and irrational. According to the association, the respondent could not have prescribed `1st August, 1994 as the cut off date for the purpose of computation of gratuity on the basis of the revised scale of pay. This Court (Coram: R. M. Doshit, J.), by its judgement and order dated 6th May, 1997, dismissed the petition observing that:"under section 48 of the Life Insurance Corporation Act, it is the Government which is empowered to make rules regarding terms and conditions of service of the employees of the Corporation. It is in the exercise of the said power the present rules Annexure-A to the petition are framed. Rules are in the form of revision of wage structure including the pay, allowance, pension, provident fund, gratuity, etc. admissible to the employees of the Corporation. The entire rules have to be viewed as a whole and there cannot be examination of a single entry in isolation of the rest of the provisions. Rules are in the form of revision of wage structure including the pay, allowance, pension, provident fund, gratuity, etc. admissible to the employees of the Corporation. The entire rules have to be viewed as a whole and there cannot be examination of a single entry in isolation of the rest of the provisions. Further, such rules are framed after considering the various factors including the cost constraint, administrative expenditure and capacity to pay along with several other relevant factors. Such an exercise is undertaken by the experts and decision taken after consultation with the experts cannot be interfered with unless it is contrary to the Constitution or any other law. I do not find that introduction of 1st August, 1994 as the date effective for payment of gratuity on the basis of revised scales of pay is arbitrary or discriminatory or irrational. Further, the rules being legislative in character, and the policy decision of the Government same cannot be interfered with without any sound basis. Further, the petitioners have not challenged the validity of the rules either. The petitioners have tried to compare their case with that of the other employees of the Corporation belonging to Class-II, III and IV service. I believe, such comparison is in inapposite. The terms and conditions of each class of servants is governed by separate set of rules and the provisions made thereunder cannot be compared item-wise. " (emphasis supplied) the matter was carried in appeal, being Letters Patent Appeal No. 634 of 1997, which came to be dismissed by a Division Bench of this Court by an order dated 16th February, 1999. The Division Bench, while dismissing the appeal, observed that:"2. IT is required to be noted that the grievance made by the appellant before us is that the cut off date is arbitrary and the benefit ought not to have been restricted by giving cut off date. It is required to be noted that in exercise of powers conferred by sec. 48 of the Life Insurance Corporation Act, 1966 ("the Act" for brevity), the Central Government made rules, known as, Life Insurance Corporation of India Class I Officers (Revision of Terms and Conditions of Service) Rules, 1985. The Rules by which the provision is made is not challenged. 48 of the Life Insurance Corporation Act, 1966 ("the Act" for brevity), the Central Government made rules, known as, Life Insurance Corporation of India Class I Officers (Revision of Terms and Conditions of Service) Rules, 1985. The Rules by which the provision is made is not challenged. Over and above the learned Single Judge has also found that before issuance of the Notification there was an elaborate discussion between the Corporation and the Federation of the Life Insurance Corporation of India Class I Officers Association. It was pointed out that even the banking sector for the purpose of gratuity revised the scales of pay which have been made effective from 1. 11. 1994. The communication dated 30. 12. 95 was pointed out to show that the revision of gratuity for Class I officers of the Corporation with effect from 1. 8. 1994 was acceptable to the Federation also. The learned Single Judge considering the decision of the Apex Court has disposed of the matter. "at the time of dismissal of the appeal, the learned Advocate for the appellant-original petitioner sought for `leave to appeal to approach the Supreme Court, but then, the same was refused on the ground that there is no merit. ( 4 ) VIRTUALLY, for the same reliefs, the present petition is filed and, therefore, it is contended by the learned Advocate for the respondents that the petition is barred by `res judicata or in any case by `constructive res judicata. It is also contended on behalf of the respondents that the concurrence was reached on the basis of which the Rules were framed and that concurrence was accepted by the federation as a whole. Now, to challenge an item singularly from the said concurrence will make it non-workable. The federation of LIC Class-I Officers Association had found the concurrence acceptable, therefore, there is no reason to interfere with the same. ( 5 ) THE learned Counsel appearing for the petitioners emphatically submitted that earlier, when the petition was filed, only the interpretation of rule- (9) and the relevant regulations was in question. It was contended that rule- (9) be interpreted in a particular manner, to which the Court did not agree and dismissed the petition observing that the validity of the rule is not challenged. It was contended that rule- (9) be interpreted in a particular manner, to which the Court did not agree and dismissed the petition observing that the validity of the rule is not challenged. Hence, the present petition is filed challenging the validity of the rule with a prayer that rule- (9) be quashed and set aside. ( 6 ) THE learned Advocate for the petitioners submitted that this very rule was under challenge before Kerala High Court in Original Petition No. 11231/97-K, which is decided by judgement dated 8th July, 2003. The Court has accepted the claim of the petitioners therein (Retired L. I. C. Officers Association, Kozhikode Division) to an extent and ordered that:"the claims in the Original Petition are to be upheld, but confined to persons, who continued in service after 1. 4. 1993. In respect of the gratuity payable to the officers, who had retired after 1. 4. 1993, the gratuity is to be calculated on the basis of last pay notionally drawn by them. The amount which may be payable because of the difference, are to be given to them. " ( 7 ) THE learned Advocate for the petitioners also contended that if the contentions raised by the learned Advocate for the respondents about res judicata, alternatively, constructive res judicata, are accepted, it will lead to a very peculiar situation like in the same Corporation, some officers from Kerala, who retired between 01. 08. 1992 to 31. 08. 1994, will receive the payment of gratuity, while others will not. Even for that reason, this petition is required to be entertained and at least, the relief, as granted by Kerala High Court, is required to be granted. ( 8 ) IN the considered opinion of this Court, Explanation-IV to Section-11 of the Civil Procedure Code, will be applicable to the present case, which reads as under:"any matter, which might and ought to have been made ground of defence or attach in such former suit shall deemed to have been a matter directly or substantially in issue in such suit. "it is clear from this explanation that the petitioner ought to have raised the question of validity of rule- (9) in the earlier petition, pleading that in case, the interpretation, which is put forward by the petitioners, is not found acceptable by the Court, then, the Court should hold that the rule is not valid. "it is clear from this explanation that the petitioner ought to have raised the question of validity of rule- (9) in the earlier petition, pleading that in case, the interpretation, which is put forward by the petitioners, is not found acceptable by the Court, then, the Court should hold that the rule is not valid. ( 9 ) IN this regard, the learned Advocate for the respondent relied upon a judgement of the Apex Court in the matter between Sharadchandra Ganesh Muley vs. State of Maharashtra and Ors. , reported at A. I. R. 1996 S. C. 61, wherein the Apex Court was pleased to hold that, `when a plea of bar of limitation under section-11a of the Land Acquisition Act (1 of 1894) is not raised in a petition challenging the acquisition of lands, though Amendment Act 68 of 1984 had come into force during pendency of writ petition, doctrine of `might and ought engrafted in Explanation IV to section-11a of the Civil Procedure Code would come into play. It was held that the appellant would be precluded to raise controversy once over, in view of the doctrine of constructive res judicata. The Apex Court has observed in paragraph-5 as under:"it is seen that the bar under S. 11a was available to the appellant when the first writ petition was filed, since the Amendment Act 68 of 1984 had come into force on September 24, 1984 during the pendency of the writ petition. He did not raise the point. Therefore, the doctrine of "might and ought" engrafted in Explanation IV to S. 11 of the C. P. C. would come into play and the appellant is precluded to raise the controversy once over. Therefore, the doctrine of constructive res judicata puts an embargo on his right to raise the plea of bar of limitation under S. 11a. "the learned Advocate for the respondent also relied upon a judgement of the Division Bench of this Court in the matter of Gujarat Navodaya Mandal vs. State of Gujarat and Ors. , reported at 1998 (2) G. L. H. 359, wherein the Division Bench was pleased to hold that even when the petitioner is different, the subject matter being the same, the decisions of the Supreme Court and the High Court in the earlier proceedings will be barred by constructive res judicata. , reported at 1998 (2) G. L. H. 359, wherein the Division Bench was pleased to hold that even when the petitioner is different, the subject matter being the same, the decisions of the Supreme Court and the High Court in the earlier proceedings will be barred by constructive res judicata. The learned Advocate relied upon paragraph-13 of the judgement, which reads as under: ( 10 ) ADMITTEDLY the present petitioner was not a party to the earlier petitions filed in the Apex Court as well as this High Court. But merely because the petitioner was not a party to those petitions which were filed for objecting the refinery project of the respondent no. 4-RPL, it could not be said that the same has no bearing on the present proceedings. Those proceedings were also filed by the petitioners in the Public Interest for the protection of environment and ecology. Thus all these proceedings were filed for the same "interest and claim". Therefore, when the subject matter of the earlier proceedings and the present proceedings is one and when the petitioners in both proceedings were having the same status, then the earlier decisions will create the general principle of constructive res judicata. In the Writ Petition No. 316 of 1994, the Apex Court has disposed of the petition by passing the following order:"mr. Altaf Ahmed, the learned Additional Solicitor General appearing for respondent Nos. 1, 2 and 3 very fairly stated that the respondents have taken full notice of all the grievances pointed out by the petitioner in this writ petition. He further states that the respondents are conscious and would preserve the environment in the process of setting up the refinery. The petition is disposed of. "therefore, it is incumbent upon the petitioner to show that while granting sanction and permission to the refinery in question, the respondent Nos. 1 to 3 have not fulfilled the statement made before the Apex Court by giving specific data. But that is not done. Hence the petitioners petition deserves to be rejected for that failure. " 10. "therefore, it is incumbent upon the petitioner to show that while granting sanction and permission to the refinery in question, the respondent Nos. 1 to 3 have not fulfilled the statement made before the Apex Court by giving specific data. But that is not done. Hence the petitioners petition deserves to be rejected for that failure. " 10. The learned Advocate appearing for the petitioners contended that the matter of interpretation of rule and the challenge to the validity of the rule are two different aspects and once there is a decision only on the ground of interpretation of the rule and when it has come to the notice of the petitioners that the Court had declined the relief only on the ground that the validity of the rule is not challenged, the petitioners can always approach this Court by filing a petition challenging the validity of the rule. This contention is aptly answered by a decision of this Court in the matter of prof. M. J. Pathakji vs. Union of India and Ors. , reported at 1985 (2) G. L. R. 839, wherein this Court was confronted with a similar situation and the Court was pleased to answer the same by saying that,"if the petitioner had sought a declaration from this Court that impugned clause 5 was violative of Article 14, he would not have been granted such declaration. However, the petitioner joined issue before the Division Bench during the currency of the Presidential declaration under Article 359 (1) and contended that clause 5 should be so interpreted as to exclude ex-Govt. servant who had joined private Govt. aided college. This interpretation was not accepted by the Division Bench as seen above. At that stage, it was open to the petitioner to contend that if the interpretation canvassed by him was not accepted, and contrary interpretation has accepted, the said interpretation would run counter to Article 14 of the Constitution which despite the declaration of the President under Article 359 (1) was not suspended and was very much in the Constitution. It was submitted that it was not obligatory on the petitioner to canvass such a contention. It was submitted that it was not obligatory on the petitioner to canvass such a contention. It is not possible to agree with the aforesaid submission for the simple reason that if interpretation put up by the Division Bench on clause 5 had been replaced by the interpretation as canvassed by the petitioner in the earlier proceedings, his petition would have been fully allowed and he would have been granted P. G. Scale of Rs. 700-1100. Instead he was granted lesser relief by the Division Bench only because vulnerability of the interpretation put forward by the Division Bench in the light of Article 14 was not canvassed by the petitioner before the Division Bench. It, therefore, cannot be said that such alternative contention was not germane to the main question in controversy between the parties in the earlier proceedings and was not required to be canvassed at that stage. That contention could have been canvassed and ought to have been canvassed with a view to getting full relief in the earlier proceedings. " ( 11 ) IN the present case, the Court had not granted any relief to the petitioner and had dismissed the earlier petition. Even when the matter was before the Division Bench in Letters Patent Appeal, the petitioner could have sought the permission to challenge the validity of the rule as it was known to the petitioner that the interpretation put forward by him of rule- (9) was not accepted by the Court and that Court had specifically mentioned that the validity of the rule is not challenged. ( 12 ) IN view of the aforesaid discussion, the present petition fails and is dismissed. Rule is discharged. No order as to costs. .