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2015 DIGILAW 659 (GUJ)

Jayendra Himatlal Shah v. Union of India

2015-07-01

G.B.SHAH, K.S.JHAVERI

body2015
ORDER : K.S. Jhaveri, J. By way of this petition, the petitioner has prayed for following reliefs : "(a) That your Lordships be pleased to allow this petition. (b) That your Lordships further be pleased to quash and set aside the final order/decision of the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad dated 23.2. 2015 in O.A No. 17/2014 with MA 306/2014." 2. The petitioner has challenged the judgment and order of the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad dated 23rd February 2015 in O.A No. 17/2014 with MA 306/2014 wherein the applicant herein has challenged the denial of nonpayment of subsistence allowance during his service with the respondent. 3. Counsel for the applicant states that the Tribunal has committed error in dismissing the O.A on the ground of res judicata and the finding arrived at by the Tribunal is not permissible in view of observation which are made in Contempt Application No.20/2010 in OA 25/2009 dated 4th April 2014. The Tribunal in para 9 and 10 of the said order observed as under : "9. The intention of this Tribunal is also clear from the order dated 16.2.2010 extracted above, (portion in italics) viz "passing of the order shall not stand in the way of the respondents instituting a departmental enquiry in respect of the allegation regarding the trap case if they so desire having regard to the law laid down on the subject". It is apparent that the Tribunal did not intend the order in OA 25/09 to prejudice the action of respondents in the trap case. 10. We are therefore of the view that the respondents are correct in their interpretation of the effect of the order of Tribunal dated 16.2.2010 that following the quashing of the order of compulsory retirement, the suspension in the trap case got revived and as a consequence the applicant is entitled to subsistence allowance as per rules governing the employee deemed to have superannuated on 31.8.2010 while under suspension". 4. The observations which are made in the Contempt Application are not required to be challenged. However, he contended that the Tribunal has committed error and therefore the matter may be remanded to the Tribunal. 5. Counsel for the respondent Mr. 4. The observations which are made in the Contempt Application are not required to be challenged. However, he contended that the Tribunal has committed error and therefore the matter may be remanded to the Tribunal. 5. Counsel for the respondent Mr. Joy Mathew appearing for the respondent contended that the Tribunal has not committed any error in view of the observations made in para 13 to 15 of the Tribunal's order : "13. In my humble opinion, this Tribunal by the order dated 4.4. 2014 in C.P. No.20/2010 has answered all the questions articulated above. In other words, the issue involved in the present O.A has been considered by the Tribunal in C.P No. 20/2010. As such the same issue cannot be re-agitated by the applicant by filing the instant O.A since the same is hit by the principles of res judicata. The Hon'ble Supreme Court in the case of Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr., AIR 1960 SC 941 explained the scope of principle of res judicata and observed as under : "The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter whether on a question of fact or a question of law has been decided between two parties in one suit or proceedings and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct." Similar view has been reiterated in Daryao & Ors. v. State of U.P. & Ors. AIR 1961 SC 1457 ; Greater Cochin Development Authority v. Leelamma Valson & ors. The result of this is that original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct." Similar view has been reiterated in Daryao & Ors. v. State of U.P. & Ors. AIR 1961 SC 1457 ; Greater Cochin Development Authority v. Leelamma Valson & ors. AIR 2002 SC 952 and Bhanu Kumar Jain v. Archana Kumar & Anr. AIR 2005 SC 626 . 14. In Hope Plantations Ltd. v. Taluk Land Board, Peermade & Anr. (1999) 5 SCC 590 , this Court has explained the scope of finality of the judgment of this Court observing as under : "One important consideration of public policy is that the decision pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by the appellate authority and other principle that no one should be made t fact the same kind of litigation twice ever because such a procedure should be contrary to consideration of fair play and justice. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped form questioning it. 15. In view of the above, I am of the opinion that it is not permissible for the applicant to reagitate the matter again before the Tribunal claiming pay and allowances for the period from 24.11. 2003 to 31.8.2010 in view of the fact that his Tribunal by the order dated 4.4.2014 in C.P.No. 20/2010 had given a categorical finding that as on the date of his deemed superannuation i.e. on 31.8.2010, the applicant was under suspension and that he is entitled to subsistence allowance as per rules governing the employee deemed to have superannuated while under suspension. Therefore, I find it difficult to give a different finding than the one which was already given on the said issue which requires to be adjudicated on this O.A particularly in the absence of a challenge to the order of the Tribunal dated 4.4.2014 in C.P No. 20/2010 and also challenge to the order of suspension dated 11.11.2003. Therefore, I find it difficult to give a different finding than the one which was already given on the said issue which requires to be adjudicated on this O.A particularly in the absence of a challenge to the order of the Tribunal dated 4.4.2014 in C.P No. 20/2010 and also challenge to the order of suspension dated 11.11.2003. It is not the case of the applicant that the order of the Tribunal dated 4.4.2014 in C.P No. 20/2014 was a subject matter before any other higher forum and the same is either set aside or modified." 6. Counsel for the respondent has contended that since he has not challenged the finding made by the competent court namely the Central Administrative Tribunal and in view of order of the Division Bench which reached its finality between the parties, no error is committed. 7. We have heard Mr. Trivedi for the petitioner and Mr. Joy Mathew for the respondent. Mr. Trivedi has contended that the finding which are made by the Division Bench are not conclusive. However, in our view the Tribunal has rightly concluded with the finding which are made on 4th April 2014 passed in Contempt Application No. 20/2010 in OA 25/2009 and therefore, the petition being devoid of any merits is required to be dismissed. 8. This petition is devoid of any merits and stands dismissed. Notice is discharged. Writ Petition dismissed.