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Madras High Court · body

2009 DIGILAW 878 (MAD)

P. P. George v. The Presiding Officer & Others

2009-03-31

R.BANUMATHI

body2009
Judgment Writ Petition is filed under Article 226 of Constitution of India praying to issue Writ of Certiorarified Mandamus calling for records in C.C.P.No.83/1999 dated 12. 2004 on the file of the 1st Respondent and quash the same and compute the benefits as prayed in C.C.P.No.83/1999 on the file of 1st Respondent. Writ Petition has been filed challenging the order of dismissal of Claim of Rs.6,21,423/-being the difference on account of wrong fixation of pay for the period from 01.04.1967 to 30.06.1993. 2. Brief facts which led to the filing of Writ Petition are as follows:- (i) Petitioner joined the service in the Respondent Airlines as Typist in 1962 and thereafter selected as Stenographer in 1985. Petitioner was posted to Ahamadabad in February 1987 and at that time his basic pay was Rs.165/-. Basic pay was fixed as Rs.230/- as on 01.04.1967. (ii) Earlier, Petitioner has filed C.C.P.No.87/1993 under Sec.33-C(2) of I.D. Act before 1st Respondent on the ground that in terms of Sec.12(3) Wage Settlement his basic pay should have been fixed at Rs.285/- instead of Rs.230/-p.m. and for the period 1967 to 1993 [date of retirement] a sum of Rs.2,77,280/-was due to him whereas only Rs.2,48,096/- was paid and difference amount of Rs.29,184/-was due to the Petitioner. By the order dated 06.04.1998, first Respondent accepted the contention of the Petitioner and computed a sum of Rs.29,184/-being the arrears due to him under various Wage Settlements. (iii) Petitioner has filed C.C.P.No.83/1999 claiming Rs.6,21,423/-allegedly difference in pay arising out of the correct fixation of basic salary. Case of Petitioner is that Petitioner made several representations to the Respondents claiming difference by stating that correct basic pay should have been fixed at Rs.285/-as on 01.04.1967 and Petitioner would be entitled to the consequential difference in salary. Case of Petitioner is that he is entitled to a sum of Rs.6,21,423/- being the difference on account of wrong fixation of pay. 3. Respondents 2 and 3 resisted the Claim contending that pay of the Petitioner has been correctly fixed and that already due amount has been paid. In the counter, it was averred that Respondents 2 and 3 have to pay Rs.8,298.64 only. 4. Observing that from 04. 1967 fitment should be at the rate of Rs.285/-, Labour Court ordered Claim Petition in C.P.No.87/1993. In the counter, it was averred that Respondents 2 and 3 have to pay Rs.8,298.64 only. 4. Observing that from 04. 1967 fitment should be at the rate of Rs.285/-, Labour Court ordered Claim Petition in C.P.No.87/1993. In the earlier Claim Petition in C.C.P.No.87/1993, Petitioner claimed Rs.29,184/- being the difference on account of wrong fixation of pay from 010. 1967 and the same was paid to the Petitioner. 5. Mr. S.Senthilnathan, learned counsel for the Petitioner submitted that Petitioner is entitled to basic pay at the rate of Rs.285/- and also entitled to the increase in the Dearness Allowance. Learned counsel for the Petitioner submitted that earlier Claim Petition in C.C.P.No.87/1993 was filed for basic pay and the present Claim Petition has been filed for Dearness Allowance which is consequential to the increase in the salary. Learned counsel for the Petitioner would further submit that Labour Court failed to note that what is claimed is the difference in Dearness Allowance and Labour Court erred in dismissing the Claim Petition. 6. Mr. N.G.R.Prasad, learned counsel for the Respondents 2 and 3 has contended that in the earlier Claim Petition [C.C.P.No.87/1993], Labour Court directed to pay Rs.29,184/- to the Petitioner and accordingly the same was paid to the Petitioner. Learned counsel for the Respondents would further contend that for the same period i.e. 1967 to 1993, Petitioner claimed salary in the second Claim Petition [C.C.P.No.83/1999] and Petitioner having made his claim for the same period in the earlier Claim Petition, he cannot reserve the other for subsequent litigation. 7. Alleging that salary to be fixed applying Clause 4 (3) (b) of the Agreement, Petitioner filed C.C.P.No.87/1993. Petitioner has claimed Rs.29,184/- and the Schedule reads as under:- Schedule The total amount the applicant is entitled to receive if Clause 4 (3) (b) of the Agreement had been applied is ...... Rs.2,77,280/- Actual amount received Rs.2,48,096/- The amounts have been calculated on the basis of basic salary for the period April 1967 to October 1993. The claim of the applicant is Rs.29,184/-. By its order dated 06.04.1998, first Respondent – Labour Court accepted Petitioners contention and computed a sum of Rs.29,184/- as being arrears due to him under various Wage Settlements. 8. Claiming proportionate DA and alleging that his DA ought to have been calculated on the basis of re-fixation of salary, Petitioner filed C.C.P.No.83/1999 calculating the consequential differences to be paid at Rs.2,88,795/-. 8. Claiming proportionate DA and alleging that his DA ought to have been calculated on the basis of re-fixation of salary, Petitioner filed C.C.P.No.83/1999 calculating the consequential differences to be paid at Rs.2,88,795/-. Petitioner has also claimed interest of Rs.3,32,628/- and made total claim of Rs.6,21,423/-. 9. As held by the Labour Court for the same period from April 1967 to October 1993, Petitioner already claimed the salary. Based on that, if at all any DA is payable to the Petitioner, Petitioner ought to have made his Claim in his earlier Claim Petition in C.C.P.No.87/1993. Even according to the Petitioner, the amount due under various Wage Settlements covers the period from 1967 till 1993. But Petitioner chose to file C.C.P.No.87/1993 only in July 1993. At the distant point of time for the same period, Petitioner cannot claim consequential benefits. 10. In 2004 (4) LLN 744 [Executive Engineer ZP Engineering Division and another v. Digambara Rao], it was held that general principles of res judicata applies to an industrial adjudication. Supreme Court has observed as follows:- "The principle of res judicata operates on the Court. It is the Courts which are prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the Court trying the subsequent proceeding is satisfied that the earlier Court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such Court. ...." 11. Observing that Sec.11 CPC including constructive res judicata applicable to the industrial adjudication and when High Court deciding against workman in earlier proceedings, Labour Court was not competent to entertain same dispute in subsequent proceedings in 2003 (3) LLJ 1153 [Pondicherry Khadi and Village Industries Board v. Kulothangan P. and another], Supreme Court has held as follows:- "9. In our opinion, the appellant has correctly contended that the industrial dispute pertained to the same subject matter dealt with in the earlier writ proceedings and was barred by the principles of res judicata it is well established that although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under Sec.11 of the Code, are applicable, Workmen v. Straw Board Mfg. Co. AIR 1974 SC 1132 : 1974 (4) SCC 681 : 1974 I LLJ 499, including the principles of constructive res judicata. 12. Co. AIR 1974 SC 1132 : 1974 (4) SCC 681 : 1974 I LLJ 499, including the principles of constructive res judicata. 12. Observing that dismissal of a Writ Petition challenging disciplinary proceedings on the ground that charged officer had not been afforded reasonable opportunity to meet the allegations against him, operated as res judicata in respect of the subsequent suit in AIR 1977 SC 1680 : 1977 (2) SCC 806 [State of U.P. v. Nawab Hussain], Supreme Court held as follows:- ."....... it may be that the same set of facts may give rise to two or more causes of action. If in such a case, a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have, therefore, treated such a course of action as an abuse of its process". 13. There is much force in the contention of the learned counsel for the Respondents 2 and 3 that Claim Petition in C.P.No.87/1993 and Claim Petition in C.P.No.83/1999 are based on same facts and cause of action. Having agitated the matter for salary from April 1967 to October 1993, it is not open to the Petitioner to re-agitate the same for consequential benefits. Petitioner is precluded from re-agitating the matter. 14. In the counter filed by the Respondents 2 and 3, Respondents 2 and 3 have stated that after paying Rs.29,184/-, an amount of Rs.8,298/-is due. As averred in the counter that Respondents 2 and 3 have to pay only a sum of Rs.8,298/-, on the facts and circumstances of the case and having regard to the same issue involved in the subsequent Claim Petition, Labour Court rightly dismissed Petitioners Claim Petition and the impugned order does not suffer from any perversity or illegality warranting interference. 15. In the result, the Writ Petition is dismissed. No costs.