General Manger, South Eastern Railway and ors. Vs. Mr. Chintamani Acharya and ors. - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - the respondents have also taken a stand that since on an earlier occasion, this tribunal declined to give a direction to the railways to consider the representation of the applicant to provide a compassionate appointment to a member of his family the prayer as made in the present original application, is bad on the ground of res judicata/constructive res judicata thus, before the tribunal, the present petitioners took a stand that since on an earlier occasion this tribunal declined to give direction to the railways to consider the representation of the applicant to give compassionate appointment to a member of his family, similar prayer made in the present original application is bad on the ground of re-judicata/constructive res-judicata. it is well settled that section 11 of the civil procedure code, 1908 (hereinafter 'cpc') is not the foundation of the principle of res judicata, but merely statutory recognition thereof & hence, the section is not to be considered exhaustive of the general principle of law. it is to be noted that though this point was specifically argued, the learned member has not dealt with it for the reasons best known to him.b.n. mahapatra, j.1. this writ petition is directed against the order dated 4th july, 2003, passed by the central administrative tribunal, cuttack bench, cuttack (hereinafter referred to as the 'tribunal') in o.a.no.73 of 2001 in which the tribunal has directed the petitioners to consider the case of swarnalata acharya, d/o chintamani acharya for providing her a compassionate appointment.2. the facts & circumstances giving rise to the present writ petition are that opposite party no. 1, chintamani acharya, while working as diesel engine driver, south eastern railways, remained sick for a prolonged period. the medical superintendent of south eastern railway on several occasions certified that the opposite party no. 1 should not be given heavy work & should be allowed to do/deal with comparatively lighter work. because of his illness opposite party no. 1 applied to the railway authorities for voluntary retirement on the ground of ill health with three months prior notice. accordingly, he was allowed to go on voluntary retirement with effect from 24.6.1996. after such retirement, since he did not get payment of retrial benefit in time, he approached the tribunal by filing o.a. no. 132/97 for appropriate relief & only after filing of the o.a., the pensionary benefits were given to him. since the said pensionary benefits were not in accordance with new pay scale, which came into force with effect from 01.01.1996 the petitioner approached the tribunal in o.a. no. 179 of 1998. while disposing of o.a.no.179 of 1998 the tribunal directed the departmental authorities to make payment of the differential arrear amounts & the terminal benefits to the opposite party no. 1 within a period of 15 days from the date of the order, if not already paid. opposite party no. 1 also filed misc. application no. 78/2000 seeking a direction to the respondents for disposal of his representations wherein he had prayed for considering the case of his son for compassionate appointment. this prayer of the opposite party no. 1 was rejected by the tribunal by its order dated 03.08.2000 passed in o.a. no. 179 of 1998 on the ground that the applicant had retired from service by serving notice for voluntary retirement & he had neither died while in service nor retired on invalidation ground. thereafter, opposite party no. 1 filed o.a. no. 73/01, seeking a direction from the tribunal to consider his application for appointment of his daughter on compassionate ground, which was allowed with the above direction.3. mr. b. pal, learned counsel appearing on behalf of the. petitioners vehemently argued that the order of the learned tribunal dated 4th july, 2002 (annexure-3) is contrary to the rules, without jurisdiction & hit by the principles of res judicata/constructive res judicata. he further argued that, as per establishment sl. no. 120/1983, compassionate appointment can be made in respect of dependents of the railways servants who lost their lives. in course of duty or died in harness or while in service became medically incapacitated. in the present case, since the opposite party no. 1 has taken voluntary retirement, compassionate appointment cannot be given to his daughter. further, the tribunal has also committed an error by not adjudicating the preliminary objection raised on the ground of res judicata/constructive res judicata before it. the issue relating to compassionate appointment of the son of opposite party no. 1 having been rejected earlier in o.a.no. 179 of 1998 by the tribunal, filing of the second o.a.no.73/01 seeking similar relief is not maintainable on the ground of res judicata/constructive res judicata.4. mr. k.k. jena, learned counsel appearing on behalf of the respondent no. 1, contended that the opposite party no. 1 virtually had become incapacitated to discharge his duty in the railways service because of his prolonged sickness. for such reason, only he applied for premature retirement voluntarily. prolonged illness of the opposite party no. 1 is supported by the medical certificates issued by the medical superintendent of south eastern railways, khurda road. on several occasions, the medical superintendent had certified that the applicant should not be given heavy work & should be allowed to do/deal with comparatively lighter work. therefore, it cannot be said that the case of the opposite party no. 1 is not covered by the circumstances enumerated in establishment sl. no 120/1983 which deals with compassionate appointment. referring to paragraph 6 of the counter affidavit, it was further contended that the tribunal disposed of o.a. no. 179 of 1998 without considering as tc whether applicant's son or daughter was entitled for compassionate appointment & left the said issue open. hence, the o.a. no. 73 of 2001 is not barred by the principle of res judicata/constructive res judicata therefore, the writ petition should be dismissed.5. on the rival contentions raised at the bar, the following questions fall for consideration by this court:(i) whether the second o.a.no.73 of 2001 (annexure-3) filedoefore the tribunal was barred by the principles of res judicata?ii) whether the direction given by the tribunal for considering the case of the daughter of opposite party no. 1 for compassionate appointment is contrary to the rules enumerated in the railways establishment sl. no. 120/1983?6. it is not in dispute that the division bench of the tribunal in its order passed in o.a.no. 179/98 categorically held that they were not inclined to accept the prayer for issuing a direction to consider the case of the applicant's son for compassionate appointment. the relevant part of the order passed in o.a. no. 179 11998 reads as under:applicant has filed misc. application no. 78/2000 seeking direction to respondents to dispose of his representations vide annexure-2, 3 & 4. these representations are for considering the case of the applicant's son for compassionate appointment. we are not inclined to accept this prayer, because respondents to their counter have pointed out that applicant retired from service by serving notice for voluntary retirement. he has neither died while in service nor has retired on invalidation ground. it is not necessary for us to consider whether the applicant's son is entitled for compassionate appointment or not. however, in view of the controversy which is apparent from the pleadings of the parties we decline to issue and direction to respondents (railways) to dispose of applicant's representation with regard to compassionate appointment. m.a. 78/2000 is disposed of accordingly.in spite of the above order of the tribunal the learned single member of the tribunal in o.a. no. 73/01 directed the petitioners to consider the case of the applicant's daughter for providing her an appointment on compassionate ground. before the learned single member, the present petitioners who were the opposite parties before the tribunal raised a specific ground contending that o.a. no. 73/01 was barred by doctrine of res judicata/constructive res judicata, but the said issue has not been adjudicated by the learned single member. it is necessary to reproduce here the relevant portion of the order of the learned single member where he took note of the petitioner's contention on the point of res judicata/constructive res judicata:in the present original application, the respondents/railways have taken a stand that since the applicant took a voluntary retirement, simplicitor, his family is not entitled to get benefits of compassionate appointment. the respondents have also taken a stand that since on an earlier occasion, this tribunal declined to give a direction to the railways to consider the representation of the applicant to provide a compassionate appointment to a member of his family the prayer as made in the present original application, is bad on the ground of res judicata/constructive res judicatathus, before the tribunal, the present petitioners took a stand that since on an earlier occasion this tribunal declined to give direction to the railways to consider the representation of the applicant to give compassionate appointment to a member of his family, similar prayer made in the present original application is bad on the ground of re-judicata/constructive res-judicata.7. the apex court in state of karnataka v. all india manufacturers organisation : (2006) 4 sco 683, held as under:res judicata is a doctrine based on the larger public interest & is founded on two grounds; one being the maxim nemo debet bis vexari pro una et eadem causa (no one ought to be twice vexed for one & the same cause) & second, public policy that there ought to be an end to the same litigation. it is well settled that section 11 of the civil procedure code, 1908 (hereinafter 'cpc') is not the foundation of the principle of res judicata, but merely statutory recognition thereof & hence, the section is not to be considered exhaustive of the general principle of law. the main purpose of the doctrine is that once a matter has been determined in a former proceeding, it should not be open to parties to reagitate the matter again & again. section 11 cpc recognises this principle & forbids a court from trying any suit or issue, which is res judicata, recognising both 'cause of action estoppel' & 'issue estoppel'.8. admittedly, in the case at hand, similar prayer earlier made before the tribunal was rejected. it appears from the order dated 03.08.1998 passed in o.a. no. 179 of 1998, the issue regarding compassionate appointment to a family member of o.p. no. 1 was raised, heard & finally decided by the learned members of the division bench. therefore, filing of another o.a. with the similar prayer shows mala fide intention. if the applicant was dissatisfied with the earlier order of thetribunal passed in o.a.no. 179 of 1998, he could have approached this court against the same. by not doing so, the earlier order attained finality. hence, the second o.a. should have been thrown out at the threshold as the same was not maintainable by application of doctrine of res judicata. it is unfortunate that this fundamental principle has not been kept in mind by the learned member who has apparently acted contrary to judicial discipline. when the division bench of the tribunal had already declined to grant the relief specifically prayed for, the learned single member should not have granted such relief. it is to be noted that though this point was specifically argued, the learned member has not dealt with it for the reasons best known to him. looking at the issue from any angle, the order of the tribunal is not sustainable.9. since the writ petition succeeds on the ground of res judicata, there is no need to adjudicate the other issue, which may amount to mere academic exercise.10. in the result, the writ petition is allowed & the order dated 04.07.2003 passed by the tribunal is quashed.no order as to costs.l. mohapatra, j.i agree.