Gati Krushna Das vs Union Of India & Others

Swarup Kumar Mishra, Member (J)

As it appears from the record, this O.A. if offshoot of the order dated 09.11.2012 and the consequent order passed thereto dated 14.11.2012 whereby and whereunder the order dated 25.10.2012 was revised/superseded relating to the date of conferment of financial upgradation under MACP. The said orders were the subject matter of challenge in O.A. No. 200/2013 inter alia praying for quashing the order dated 09.11.2012 and 14.11.2012 thereby restoring the order dated 25.10.2012 with further direction to the respondents to refund the amount already recovered from the salary of the applicant with 18% interest per annum consequent upon refixation of pay on revision of the date of conferment of financial benefits under MACP. The said O.A. was disposed of vide order dated 21.06.2017, an excerpt from it quoted as under:

“16. Having regard to the discussions held above, we have not hesitation to hold that the applicant had rightly been granted the 3rd financial upgradation under the MACP Scheme vide order dated 27.05.2009 (A/4) which is hereby sustained. In effect, we quash the impugned orders dated 09.11.2012 and 15.10.2012 (sic) vide Annexure A/5 and A/6, respectively, and direct the respondents to refund the excesses amount already recovered from the salary of the applicant, within a period of 60 (sixty) days from the date of receipt of this order. It is, however, made clear that if the excess amount already recovered is not refunded to the applicant within the time as stipulated above, respondents shall be liable to make payment of interest @ 12% per annum from the date of expiry of the stipulated period till the date of actual payment.”

Respondents department challenged the aforesaid order of this Tribunal dated 21.06.2017, in O.A. 200/2013 before the Hon’ble High Court of Orissa vide W.P.(C) No. 21962/2017 and the Hon’ble High Court of Orissa vide order dated 11.05.2018 set aside the order of this Tribunal and excerpt of it reads as under:

“7. On going through the above material facts, it is evident that opposite party no.1 entered into the Government service in the year 1983. He got promotion to the next higher post in the year 1989 and got the TBOP in the year 2005 (counting 16 years from 1989). As per Sl. No.3 of the clarification dated 18.10.2010, he is off set from the 1st MACP and thereafter since he got TBOP in the year 2005 prior to the introduction of MACP in 2008, he also off set 2nd MACP. Thus taking into consideration his service from the entry level post, in the year 1983, the applicant is entitled to 3rd MACP in the year 2013, i.e. on completion of 30 years after the date of entry into the service instead of 2015, i.e. 10 years from 2005 when he has received TBOP (Time Bound One promotion) on completion of 16 years of service from the date of promotion in the year 1989. However, the Tribunal has ignored the conferment TBOP on completion of 16 years from the date of his promotion in the year 1989 and as such granted 3rd MACP on completion of 20 years from the date of promotion in the year 2009. However the applicant is not entitled to such benefit on completion of 20 years from the date of promotion as prior to introduction of MACP in the year 2008, he has received TBOP in the year 2005 counting 16 years from the date of his promotion in the year 1989.

In view of the above, this Court is of the opinion that the Tribunal has erred in law and fact in appreciating the case in its proper perspective while passing the impugned order. Since there is error apparent on the face of it, this Court in exercising its jurisdiction conferred under Article 227 of the Constitution of India sets aside the impugned order passed by the Tribunal.”

Fact remains that the aforesaid order of the Hon’ble High Court remains unchallenged by filing any review or appeal by the applicant. However, by filing the present O.A., the applicant by placing the reliance of the Hon’ble Apex Court in the case of State of Punjab Vs. Rafiq Masih (White Washer) etc. [Civil Appeal No. 11527/2014, decided on 18.12.2014] has sought to quash the order dated 14.11.2012 and to direct the respondent No.2 to refund the recovered amount.

Respondents filed counter objecting to the very maintainability of this O.A. after the order of the Hon’ble High Court of Orissa referred to above and have submitted that this O.A. is liable to be dismissed both on merit as well as on the ground of maintainability.

Ld. Counsel for the applicant by placing the decision of the Hon’ble Apex Court in the case of Rafiq Masih (supra) has submitted that the applicant being a Group-C employee and payment of excess amount was not attributable to him, recovery would cause him financial hardship. It has been submitted that the recovery was not the specific subject matter of challenge in the O.A. or in the order of Hon’ble High Court of Orissa and, therefore, this O.A. is maintainable and recovery being bad in law is liable to be quashed.

On the other hand, Ld. Counsel for the respondents has submitted that this O.A. suffers from res judicata because the very order dated 14.11.2012 was challenged by the applicant in the previous O.A. with further prayer that the amount already recovered from the applicant may be refunded to him and, this Tribunal quashed the impugned orders and directed to refund the amount already recovered from the applicant, which order of the Tribunal was challenged and set aside by the Hon’ble High Court without any direction that the amount already paid cannot be recovered. Further, it has been submitted that any direction not to make any recovery would tantamount to overreaching the order of the Hon’ble High Court, which is impermissible under the law. Hence, this O.A. is liable to be dismissed both on merit so also on maintainability being hit by the law of constructive res judicata.

Considered the rival submissions of the respective parties and perused the records. This Tribunal is reminded by a well known maxim ‘nemo devet vis vexari pro una et eadem cause” (No man should be taxed twice over for the same cause). No one ought to be vexed twice in the same litigation if it appears to the Court that it is for one and the same cause. It operates against both the parties to the case, and not against one alone. The doctrine applies to all judicial proceedings and it equally applies to quasi-judicial proceedings in tribunals. In the case of Sheodan Singh v. Daryao Kunwar, (1966) 3 SCR 300 (at 304-305), the Hon’ble Apex Court was pleased to fix conditions relating to res judiciata as under:

“A plain reading of Section 11 shows that to constitute a matter res judicata, the following conditions must be satisfied, namely—

(i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;

(ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim;

(iii) The parties must have litigated under the same title in the former suit;

(iv) The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and

(v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit. Further Explanation I shows that it is not the date on which the suit is filed that matters but the date on which the suit is decided, so that even if a suit was filed later, it will be a former suit if it has been decided earlier. In order therefore that the decision in the earlier two appeals dismissed by the High Court operates as res judicata it will have to be seen whether all the five conditions mentioned above have been satisfied.”

Further, it is well settled that if the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point – each of which by itself would be sufficient for the ultimate decision - the decision on each of these points operates as res judicata between the parties vide Commissioner of Endowments Vs. Vittal Rao, AIR 2005 SC 454).

From the facts stated above, it appears that the subject matter of this Original Application was also considered by this Tribunal in earlier OA and by the Hon’ble High Court (referred to above) and, therefore, squarely comes under the conditions stipulated by the Hon’ble Apex Court (as above) attracting the doctrine of res judicata. Hence, the OA stands dismissed by leaving the parties to bear their own costs.