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2017 DIGILAW 2444 (ALL)

UNION OF INDIA v. RAM ASHIS

2017-10-27

NEERAJ TIWARI, RAN VIJAI SINGH

body2017
JUDGMENT By the Court.—We have heard Sri Vikas Goswami holding brief of Sri Prashant Mathur, learned counsel for the petitioners and Sri Vinay Kumar Srivastava, learned counsel for respondent No. 1. 2. By means of this writ petition, prayer has been made to issue a writ of certiorari quashing the order dated 19.5.2011 passed by the Central Administrative Tribunal in Original Application No. 351 of 2007 (Ram Ashis v. Union of India and others) by which the learned Tribunal has directed the petitioners to consider the case of the respondent No. 1 for regularization, after due screening, as ex casual labours subject to fulfilment of the requisite qualification. 3. The facts of this case, in brief, are that the respondent No. 1 was engaged as casual labourer in the year 1981-1982 on the post of Hamal and thereafter he had been engaged from time to time. It appears that at one point of time the respondent No. 1 was not engaged on the post of Hamal. It is stated that although the respondent No. 1 had worked from 25.4.1997 to 27.8.1997 but his wages to the tune of Rs. 11,168/- had been with-held. 4. For redressal of his grievance the respondent No. 1 had made an application on 27.8.1997 to the Divisional Railway Manager (P), N.E. Railway, Varanasi with the prayer to pay the salary since 25.4.1997 to the date of representation dated 27.8.1997. When this representation was not considered and decided the respondent No. 1 has filed an Original Application No. 362 of 1998 (Ram Ashis v. Union of India and others) seeking direction to the petitioners to regularise his services on the post of Hamal after due screening with the further prayer seeking a direction to the petitioners to screen the respondent No. 1 as the number of juniors have already been screened and to make payment of salary since July, 1997 which was with-held by the petitioners. In the aforesaid O.A. counter-affidavit has been filed by the petitioners but the respondent No. 1 has not filed any rejoinder-affidavit. However the case was finally disposed of by the Tribunal vide judgment and order dated 30th September, 2002. In the aforesaid O.A. counter-affidavit has been filed by the petitioners but the respondent No. 1 has not filed any rejoinder-affidavit. However the case was finally disposed of by the Tribunal vide judgment and order dated 30th September, 2002. The operative portion of the order is quoted herein below: “As both the learned counsel are unaware about the latest position of the matter in dispute regarding wages, I am of the opinion that it would be appropriate to direct the respondents to decide the representation dated 27.8.97 (annexure-5) filed by the applicant within the stipulated period. Learned counsel for the applicant has also made a prayer to direct the respondents to decide the applicant’s representation. Accordingly I direct the respondent No. 2 to decide the representation dated 27.8.97 (annexure 5) of the applicant within a period of 4 months from the date of receipt of this order and pass a detailed, reasoned and speaking order. The O.A. stands disposed of accordingly. No order as to costs.” 5. From the perusal of the operative portion of the order it is apparent that the Tribunal has only directed the respondents (petitioners herein) to decide the representation of the respondent No. 1 dated 27.8.97 within a period of four months. 6. Through representation dated 27.8.1997 the respondent No. 1 has only prayed for payment of salary from 25th April, 1997 to the date of representation dated 27.8.1997. Pursuant thereto the Divisional Railway Manager, North Eastern Railway, Sonepur has taken decision on the representation on 18.2.2003 informing the respondent No. 1 that necessary action will be taken for payment of salary as per rules in so far as the respondent No. 1’s working in Varanasi Division of N.E. Railway is concerned. This order was duly communicated to the respondent No. 1. However, from the narration of facts it transpires that the respondent No. 1 was not made aware of the decision taken on his representation and he approached a learned Member of Parliament for doing the needful for payment of his salary for the aforesaid period. Pursuant thereto it appears that learned Member of Parliament has written a letter dated 12.6.2006 to the General Manager, N.E. Railway, Gorakhpur. Pursuant thereto learned Member of Parliament has been informed vide letter dated 5.9.2006 that respondent No. 1’s four months salary has already been paid. Pursuant thereto it appears that learned Member of Parliament has written a letter dated 12.6.2006 to the General Manager, N.E. Railway, Gorakhpur. Pursuant thereto learned Member of Parliament has been informed vide letter dated 5.9.2006 that respondent No. 1’s four months salary has already been paid. So far as re-engagement of the respondent No. 1 is concerned it is informed that since the respondent No. 1’s initial engagement was not made after approval of the competent authority, therefore, no job can be provided to him. This letter dated 5.9.2006, addressed to the learned Member of Parliament has been made subject-matter of Original Application No. 351 of 2007. While seeking setting aside the letter of communication dated 5.9.2006 addressed to learned Member of Parliament the respondent No. 1 has sought regularisation of his services. To the Original application No. 351 of 2007 the petitioners have filed counter-affidavit and in paragraph 12 an objection has been raised regarding maintainability of the present original application. For ready reference, paragraph No. 12 of the counter-affidavit filed by the petitioners is reproduced herein below: “12. That the contents of paragraph No. 4.9 of the original application are not admitted as stated. It is however further submitted that the applicant earlier filed the original application No. 362 of 1998 by which the applicant has claimed the relief for issuance of direction to the respondents to regularise the services of the applicant on the post of Hamal, after due screening and make the payment of salary since 26.4.1997 to 26.8.1997 and in compliance of the said order passed by the Hon’ble Tribunal the respondents have decided the representation of the applicant and rejected the claim of the applicant for giving him regular appointment in the Railway Administration as his engagement as casual labour was found to be unauthorised and he is ot entitled to get the regular appointment after screening but made the payment of his salary for the aforesaid of Rs. 11,167/- as such the order passed by the Hon’ble C.A.T. has been fully complied with by the respondents.” 7. 11,167/- as such the order passed by the Hon’ble C.A.T. has been fully complied with by the respondents.” 7. While assailing this order, learned counsel for the petitioners has vehemently contended that in view of the fact that in the earlier Original Application No. 362 of 1998 the respondent No. 1 has sought relief of regularisation and this original application has been decided therefore in view of Explanation (v) of Section 11 of the Code of Civil Procedure it is clear that the relief of regularisation sought earlier by the respondent No. 1 has been refused by the Tribunal, therefore, the proceeding by way of Original Application No. 351 of 2007 was barred by principle of res judicata. For testing the argument of the learned counsel for the petitioners it would be appropriate to quote the relief sought by the respondent No. 1 in Original Application No. 362 of 1998, which reads as under: “(a) that by means of suitable order or direction in the nature of mandamus commanding the respondents to regularise the services of the applicant to the post of Hamal after due screening, the respondent may also be directed to screen the applicant as the number of juniors have already been screened and to make the payment of wages since July, 1997 which was arbitrarily withheld by the respondent without any positive order. And further direct them to make the payment of salary since July, 1997 with interest. (b) to issue any suitable order or direction as this Hon’ble Tribunal may deem fit and proper under the circumstances of the case.” 8. We also find it appropriate to quote the reliefs sought by the respondent No. 1 in Original Application No. 351 of 2007, a copy of which has been provided by the learned counsel for the petitioners, which reads as under: “(a) that by means of order or direction in the nature of certiorari quashing the later part of the order dated 5.9.2006 passed by respondent No. 1 (Annexure-11) to the compilation A). (b) that by means of suitable order or direction as this Hon’ble Tribunal in the nature of mandamus commanding the respondents to regularise the services of the applicant to the post of Hamal after due screening, the respondent may also be directed to screen the applicant as the number of juniors have already been screened and to make the payment of salary as are admissible under rules. (c) to ssue any suitable order or direction as this Hon’ble Tribunal may deem fit and proper under the circumstances of the case. (d) to award cost of the application in favour of the applicant.” 9. From the perusal of the reliefs sought in both the original applications it is apparent on the face of record that the reliefs sought in Original Application No. 351 of 2007 are same which were sought in Original Application No. 362 of 1998 except quashing of the letter addressed to learned Member of Parliament by the General Manager. 10. Explanation V of Section 11 of the Code of Civil Procedure, 1908 (in short CPC) provides that any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. The Apex Court in M. Nagashushana v. State of Karnataka, AIR 2011 SC 1113 , while considering the various dimensions of Section 11 of the CPC has made the following observations: “....14. The principles of Res judicata are of universal application as it is based on two age old principles, namely, `interest reipublicae ut sit finis litium’ which means that it is in the interest of the State that there should be an end to litigation and the other principle is `nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause’ meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest. 15. That principle of finality of litigation is based on high principle of public policy. 15. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties. ................... 22. A Constitution Bench of this Court in Devilal Modi v. Sales Tax Officer, Ratlam and others, AIR 1965 SC 1150 , has explained this principle in very clear terms: “But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Article 226, cannot be answered merely in the light of the significance and importance of the citizens’ fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by Courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide : Daryao v. State of U.P., 1962-1 SCR 575; ( AIR 1961 SC 1457 ).” 23. This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res judicata is to prevent an abuse of the process of Court. 24. This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res judicata is to prevent an abuse of the process of Court. 24. In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh v. Mallard, (1947) 2 All ER 255 (CA): “I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the Court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them.” 25. The Bench also noted that the judgment of the Court of Appeal in “Greenhalgh” was approved by this Court in State of Uttar Pradesh v. Nawab Hussain, (1977) 2 SCC 806 at page 809, para 4. 26. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra, (1990) 2 SCC 715 , laid down the following principle: “......an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject-matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata” 27. In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of Constructive Res judicata, as explained in explanation IV to Section 11 of the CPC, are also applicable to writ petitions. ......” 11. In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of Constructive Res judicata, as explained in explanation IV to Section 11 of the CPC, are also applicable to writ petitions. ......” 11. In view of the foregoing discussions and the provisions contained in Explanation V of Section 11 of the CPC as well as the law laid down by the Apex Court in M. Nagabhushana (supra) we are of the considered opinion that the proceeding of Original Application No. 351 of 2007 was barred by the principle of res judicata. The Tribunal has erred in not considering this aspect of the matter whereas it was raised before it and it has also made mention of the same in its judgment. Otherwise also the basic prayer in the Original Application was with respect to the quashing of the letter dated 5.9.2006 addressed to the learned Member of Parliament, which was merely a communication to the learned Member of Parliament, therefore, the Original Application could not be entertained against such communication unless any order was communicated to the respondent No. 1 or the respondent No. 1 would have annexed a copy of the order passed on his representation. 12. In the result the writ petition succeeds and is allowed. The order dated 19.5.2011 passed in Original Application No. 351 of 2007 (Ram Ashis v. Union of India and others) is hereby quashed.