IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5971 of 2009 ….... Rabindra Prasad S/o Late Deva Ram, Retd. Incharge, Survey and Drawing Section, Head Office, J.S.M.D.C. Ltd., Khanij Nigam Bhawan, Nepal House Area, Doranda, Ranchi-834002 at present residing at Near Sahitya Samaj Chowk, Jail Hata, P.O. & P.S. Medininagar (Daltonganj), District Palamau- 822101 (Jharkhand). … ... Petitioner Versus 1. Jharkhand State Mineral Development Corporation Limited, Khanij Nigam Bhawan, Nepal House Area, Doranda, Ranchi-834002 [Jharkhand] through its Managing Director. 2.Chief of Finance, Jharkhand State Mineral Development Corporation Limited, Khanij Nigam Bhawan, Nepal House Area, Doranda, Ranchi- 834002 [Jharkhand]. … ... Respondents ….... CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK ..…... For the Petitioner : Mr. Naresh Prasad Singh Mr. Arvind Kr. Singh For the Respondents : Mr. Amit Chakravarty ….... CAV on 22nd January, 2015 Pronounced on :
6. 02 /2015 In this writ application the petitioner has inter-alia prayed for directions upon respondents to pay statutory and penal interest on the amount of gratuity [part payment Rs.248728.86 from 01.08.2001 to 11.11.2003 [i.e. for 2 years 3 months approximately.], the amount of gratuity [part payment Rs. 69243.14 from 01.08.2001 to 06.01.2009 [i.e. for 07 years 05 months approximately], the amount of leave encashment Rs. 157472.00 from 01.08.2001 to 06.01.2009 [i.e. for 7 years 5 months approximately] and also upon the arrears of salary Rs. 1666.00 from 01.08.2001 to 06.01.2009 [i.e. for 07 years 05 months approximately] and direction upon respondents to pay an exemplary cost of litigation for unnecessarily harassing the petitioner and depriving him from his legitimate dues for more 2 than 7.5 years without any valid / lawful order. The factual matrix as delineated and revealed from the writ application in nutshell is that the petitioner joined his service under respondents Corporation on 29.09.1973 as a Mines Surveyor at the then Head Office of the Corporation at Patna from where he was posted and transferred at different projects at Ranchi, Bishrampur, Benti-Bagda, Chandula-Simalgoda, Gola, Koderma, Sapahi, Mosabani Bahragora, Jamshedpur, Biharsharif, Khamarbad and Daltonganj between 29.09.1973 to 31.07.2001. After rendering meritorious service of 28 years approximately, the petitioner retired on attaining the age of 58 years on superannuation on 31.07.2001 from the Head Office of respondents Corporation, Ranchi. At the time of retirement no departmental proceedings or any courts proceeding was either contemplated or pending against the petitioner. After his retirement the petitioner represented before respondent no. 1 through applications dated 08.10.2001, 01.11.2001, 03.02.2002, 04.10.2002, 20.11.2002, 20.12.2002 and 22.11.2003, wherein he had requested to pay his amount of full and final gratuity and also the amount of leave encashment. Since the legitimate retiral dues of the petitioner was not paid, the petitioner was compelled to approach this Court through a writ petition bearing W.P.(S.) No. 5943 of 2004 wherein following prayers have been made: a. To pay the amount of leave encashment equivalent to 240 days of unutilised earned leave balance to his credit at the time of his retirement. b. To refund Rs. 69243.14 which has unlawfully been deducted from the amount of Gratuity. 3 c. To pay Rs. 1394.00 on account of the arrears of salary for the last three months of service i.e. from May 2001 to July 2001. d. To pay the statutory and penal interest on all delayed payments/withheld amounts from the date it became due till the date, the same are paid to the petitioner and also the cost of litigation. This Court vide judgment/order dated 03.12.2008 has been pleased to dispose of the writ application directing the respondent no. 2, Managing Director, Jharkhand State Mineral Development Corporation to pay the withheld amount Rs. 69243.14 of leave encashment and arrears and salary within a period of three months from the date of receipt of production of the copy of the order. After obtaining a copy of the order dated 03.12.2008, the petitioner represented before respondent vide representation dated 11.12.2008 stating therein threadbare details in respect of his legitimate claims in pursuance to direction of this Court dated 03.12.2008 in W.P.(S.) No. 5943 of 2004. The respondent Corporation paid an amount of Rs. 2,28,381.86 through an Account Payee Cheque bearing no. 018827 dated 07.01.2009 containing amount of leave encashment Rs. 157472/- the arrears of salary Rs. 1666/- and the withheld amount of gratuity of Rs. 69243.86. Although the retiral dues including leave encashment and arrears of salary have been paid and since the statutory and penal interest has not been paid, the petitioner has approached this Court in this writ application for redressal of his grievance. The respondent have filed counter affidavit controverting the submissions made in the writ application. It has been contended in 4 the counter affidavit that the writ application is barred by principle of res judicata and otherwise not maintainable. The petitioner had already raised the grievance of awarding payment of penal and statutory interest and the costs in W.P.(S.) No. 5943 of 2004 and the Hon’ble Court vide order dated 03.12.2004 being cognizant of the prayer of the petitioner has also been pleased to direct the respondent to pay arrears only of the leave encashment and salary and withheld amount of gratuity. It is further stated and submitted by the counsel for the respondent in the counter affidavit that if the petitioner is aggrieved by the aforesaid order he should have gone in appeal rather than to raise the same issue by the instant writ application and the order passed in the writ application in W.P. (S.) No. 5943 of 2004 had already attained its finality. Moreover, the petitioner during his service period had committed an act of misconduct causing loss to the Jharkhand State Mineral Development Corporation, for which he was proceeded departmentally and it was also enquired into by a committee of the respondent Corporation which submitted its report detailing the irregularities committed by the petitioner. That for the said misconduct, the petitioner was issued a show cause by the Managing Director after the inquiry report, vide Memo No. 82 dated 01.06.1994. A copy of chart demonstrating loss occurred due to petitioner and Memo No. 82 dated 01.06.1994 are annexed herewith and marked as Annexure A & A/1 respectively to the counter affidavit. Again also the petitioner was issued show cause for shortage of stock which was not replied consequently resulting in delay of proceedings against him. The copy of the memo No. 740/P and 756/P are annexed and marked as Annexure B & B1 respectively. Issue raised vide para 1 & 2 to the writ petition are 5 misconceived and fit to be rejected outrightly. In reply to the assertions made in the counter affidavit, Mr. Naresh Prasad, counsel for the petitioner has vehemently submitted that the Memo No. P.C.-1-16/79/3155 dated 07.11.1981 (as printed in the last part of the Bihar Pension Rules, Malhotra Brothers) therein, the respondent State has stipulated payment of interest @ 5% per months for delayed payment, if the admitted retiral benefits is not paid within three months and there is no laches on the part of the employee. The said circular has been taken note by this Court in CWJC No. 2205 of 2001 in Mosamat Kaushalya Devi Vs. State of Jharkhand reported in (2002) 1 JLJR434 Counsel for the petitioner has further submitted that in Workmen of Cochin Port Trust vs. Board of Trustees of the Cochin Port Trust and Another reported in (1978) 3 SCC119in para 10 of the aforesaid order Hon'ble Apex Court has been pleased to hold :- “In the instant case the award of the Tribunal, no doubt, was challenged in the special leave petition filed in this Court, on almost all grounds which were in the subsequent writ proceeding agitated in the High Court. There is no question, therefore, of applying the principles of constructive res judicata in this case. What is, however, to be seen is whether from the order dismissing the special leave petition in limine it can be inferred that all the matters agitated in the said petition were either explicitly or implicitly decided against the respondent. Indisputably nothing was expressly decided. The effect of a non speaking order of dismissal without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to have decided that it was not a fit case where special leave should be granted. It may be due to several reasons. It may be one or more. It may also be that the merits of the award were taken into consideration and this Court felt that it did not require any interference. But since the order is not a speaking order, one finds it difficult to accept the argument put forward on behalf of the appellants that it must be deemed to have necessarily decided implicitly all the questions in relation to the merits of the award. A writ proceeding is a different proceeding. Whatever can be held to have been decided expressly, implicitly or even constructively while dismissing the special leave petition cannot be re-opened. But the technical rule of res judicata, although a whole some rule based upon public 6 policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork. To illustrate our view point, we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari to challenge some order or decision on several grounds. If the writ petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceeding, such as, of suit, Article 32 or Article 136 directed from the same order or decision. If the writ petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata. Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly even if one writ petition is dismissed in limine by a non-speaking one word order ‘dismissed’, another writ petition would not be maintainable because even the one-word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter; then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata. ” Counsel for the respondents has repelled the arguments advanced by the counsel for the petitioner by submitting that this writ application is hit by the principle of Res Judicata. As per the order of the Hon'ble apex Court reported in (2009) 4 SCC635in Raghvendra Rao And Others Vs. State of Karnataka And Others para 13 of the said order/ judgment has held as follows: “As noticed hereinbefore, leave had been granted to avail any other remedy available only to those petitioners who had not been paid their salary for the period during which they worked as Accountants. The claim of the appellants is, thus, barred under the principles of res judicata/constructive res judicata, the earlier judgment having attained finality. It is now a well- settled principle of law that the principle of res judicata applies also to the writ proceedings.” 7 Counsel for the respondents submitted that this 2nd writ application filed on the same cause of action is not maintainable on the ground of constructive res judicata. The second limb of the argument advanced by counsel for the respondent is that neither the Jharkhand Service Code nor the Jharkhand Pension Rules prescribes any interest on gratuity. Moreover, the Memo No. P.C.-1- 16/79/3155 dated 07.11.1981 is concerned the decisions contained in aforesaid memo is only directory not mandatory and does not have any statutory force. According to the counsel for the respondents the writ application is not entertainable due to non- maintainability of the second writ application on the principle of constructive res judicata. After perusing the records, I have given my anxious consideration to the contentions raised by the rival parties, it appears that the government decision contained in Memo No. P.C.- 1-16/79/3155 dated 07.11.1981 (as printed in the last part of the Bihar Pension Rules, Malhotra Brothers) has been taken note in the decision cited Supra. Since the grievances of the petitioner relates to payment of leave encashment, arrears of salary and gratuity has been redressed, the writ application for payment of statutory and penal interest is not maintainable due to following reasons:- 1. The grievance of the petitioner raised earlier in writ application cannot be entertained in a subsequent writ application. It is hit by principle of res judicata .
2. After disposal of the writ application earlier annexed as Annexure-1 to the writ application. Remedy which was available to the petitioner could have been avalied but the petitioner chose not 8 to avail remedy by filing the present application only on the self same cause of action is not legally permissible.
3. Lastly, the conduct of the petitioner is hit by principle of acquiescence. Since by filing the instant writ application, the petitioner is raising self same grievances, which is not entertainable. On the cumulative effects of facts/pleadings reasonings and judicial pronouncements, I am of the view that the present writ application is liable to be dismissed being devoid of any merit. (Pramath Patnaik, J.) The Jharkhand High Court, Ranchi Dated: / 02/ 2015 MM /AFR/NAFR