Central Administrative Tribunal - Delhi
Chandra Pal Singh vs Union Of India Through The Secretary on 27 September, 2011
Central Administrative Tribunal Principal Bench OA No.4193/2010 MA No.2573/2010 New Delhi this the 27th day of September, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) 1. Chandra Pal Singh S/o Shri Bhullan Singh R/o Khanjarpur, Roorkee, Uttarakhand. 2. Madan Singh, S/o Shri Narayan Singh R/o 102, Vigyan Kunj, IIT Roorkee, Uttarakhand. 3. Vijay Kumar S/o Shri Manohar Lal R/o 12, Civil Lines, Roorkee, Uttarakhand. 4. N.I. Siddiqui, S/o Shri Izhar Hasan Siddiqui R/o 341, Solanipuram, Roorkee, Uttarakhand. 5. T.P. Panicker, S/o Shri T. Panicker, R/o 176/19, Sheel Kunj, IIT Roorkee, Uttarakhand. 6. Anju Chaudhary, W/o Dr. Pratap Singh, R/o 592, Solanipuram, Roorkee, Uttarakhand. 7. Raju Juyal, S/o late Shri Daya Ram Juyal, R/o 307 (New) Solanipuram, Roorkee, Uttarakhand. 8. Vipin Kumar Agarwal, S/o Shri R.K. Agarwal, R/o 175/11, Saket Colony, Roorkee, Uttarakhand. 9. Ashok Kumar, S/o Shri Pyarelal, R/o 848, Puspanjali Vihar, (Near Rly. Station) Roorkee, Uttarakhand. -Applicants (By Advocate Shri A.N. Singh) -Versus- 1. Union of India through the Secretary, Ministry of Water Resources, Govt. of India & Chairman, Governing Body of NIH, Shram Shakti Bhawan, Rafi Marg, New Delhi-1. 2. The Secretary, Department of Pension & Pensioners Welfare, Ministry of Personnel, Public Grievances & Pension, Lok Nayak Bhawan, New Delhi-3. 3. The Secretary, Department of Expenditure, Ministry of Finance, North Block, New Delhi-1. 4. The Director, National Institute of Hydrology, Jal Vigyan Bhawan, Roorkee, District Haridwar, Uttarakhand. -Respondents (By Advocate Shri Rajesh Katyal) O R D E R Mr. M.L. Chauhan, Member (J):
Applicants, who are employees of National Institute of Hydrology (NIH), which Institution was established in 1978 and registered under Societies Registration Act, 1860 as a Society, have filed this OA, thereby praying for the following relief:
(i) set aside the Circular No.6/17/2010-NIH dt. 8.2.2010, letter No.11/22/2003-E.11/671 dt. 28.10.2009, O.M. No.1(2)/E.V./2007 dt. 30.6.2009 passed respectively by Respondent No.4 Respondent No.1 and Respondent No.3.
(ii) direct the Respondents to treat the Applicants to be covered under Pension Scheme as mandated by O.M. No.4/1/87/PIC-1 dt. 1.5.1987.
(iii) direct the Respondent to implement the Pension Scheme in terms of CCS (Pension) Rules, 1972, w.e.f. from 1.1.1986 and implement the same with respect to the Applicants who were in service and who joined the service prior to 1.1.2004 as applicable to other Central Government employees, with consequential benefits.
(iv) pass such and further order(s) as this Honble Tribunal may deem fit and proper in the facts and circumstances of this case.
2. It may be stated that vide the impugned circular dated 08.02.2010, which has been issued pursuant to another impugned circular dated 28.10.2009, the approval of the competent authority has been conveyed for shifting of the employees of NIH from CPF Scheme to New Pension Scheme and option was asked from the employees who want to switchover to the New Pension Scheme. Thus, even if the prayers of the applicants regarding quashing of these circulars are accepted, this will not ipso facto entitle the applicants to grant of pension under the Pension Scheme, which is the main grievance of the applicants in this OA. The case set up by the applicants and as can be seen from the prayer clause, is that applicants are covered under the Pension Scheme, as mandated by the OM dated 1.5.1987, as such direction may be given to the respondents to implement the pension scheme in terms of CCS (Pension) Rules, 1972 w.e.f. 1.1.1986 in respect of those employees who joined service prior to 1.1.2004, as applicable to the Central Government employees with consequential benefits. It may be relevant to state here that in terms of the Pension Rules, 1972, Pension Scheme has been made applicable to the government servants appointed on or before 31.12.2003 and borne on a pensionable establishment. Thus, in sum and substance, grievance of applicants in this case is that they are entitled for pensionary benefits under the CCS (Pension) Rules, 1972 and the mandate contained in OM dated 1.5.1987.
3. At this stage, few facts may be noticed. Applicants, nine in number, have filed this OA. It is not disputed that the applicant No.1 has retired from service on superannuation on 30.09.2010, whereas other applicants are still working in the Institute. It cannot also be disputed that under the provisions of the Bye-Laws Working Rule No.2 of 6 (A) of NIH, following two schemes were provided to the employees of NIH; i) Contributory Provident Fund-cum-Gratuity Scheme and ii) General Provident Fund-cum-pension-cum-Gratuity Scheme. It is not in dispute that the scheme under item (ii), i.e., pension scheme in terms of CCS (Pension) Rules, 1972 could not be implemented in the Institute on account of the reason that the Institute was established under Plan Scheme on 18th December, 1978 as an autonomous Scientific Research Institute under the Ministry of Irrigation, Govt. of India (now Ministry of Water Resources). The establishment of the Institute had been supported by UNDP Project for five years starting from March, 1979, envisaging financial support to provide for equipment, consultancy, study tours and training fellowships and Govt. of India counterpart contribution of Rs.128.85 lakh. It is also not in dispute that the Institute was registered on 16.12.1978 under the Societies Registration Act, 1860. It is also not in dispute that the Institute framed its Working Rules regarding service conditions of NIH employees, which were approved by the Governing Body of NIH in its meeting held on 16.6.1981 vide Item No.10.4 and also by the then Ministry of Irrigation (now Ministry of Water Resources), Govt. of India, vide letter dated 31.10.1981. Since the Institute was not functioning as a regular Government department and was functioning as a UNDP project only Scheme No. (i), i.e., Contributory Provident Fund-cum-Gratuity Scheme was made operational. Since the employees of the Institute were covered in the Contributory Provident Fund-cum-Gratuity Scheme and they were not granted the benefit of the Pension Scheme, the Association of National Institute of Hydrology Employees Welfare Forum filed Writ Petition No.374/2004 before the High Court of Uttaranchal at Nainital, which was decided on 28.06.2006. The High Court after taking into consideration Rule (4) of the Working Rule No.2, which made various rules applicable to the Central Government employees to the employees of the Institute, including Rule regarding Pension, Gratuity and Superannuation (k), after noting the contentions of the petitioners that they are entitled to be placed under Scheme (ii) of General Provident Fund-cum-Pension-cum Gratuity Scheme and clause (a) of Rule 6 and taking into consideration prayer of the petitioners that they are entitled to pensionary benefits for the reason that deductions from their salary have not been made by the employer either under the Contributory Provident Fund-cum-Gratuity Scheme, ultimately dismissed the Writ Petition of the petitioners. It was held that a plain reading of the Working Rule-6 makes it clear that no offer is required to be given by the employer but it is the responsibility of the employee, rather it is incumbent on the employee to exercise his option within three months from the date of his appointment in Form-I attached to the Rules, otherwise he shall be governed by the Contributory Provident Fund-cum-Gratuity Scheme. Thus, the High Court has categorically held that in terms of Rule-6 the employees of the Institution are governed by the CPF Scheme and the prayer of the applicants that they are entitled to pensionary benefits was rejected after taking note of Rule 6 of the Working Rule 2, which has been reproduced in para-4 of the judgment. A copy of the judgment of the High Court in the case of National Institute of Hydrology Employees Welfare Forum has been placed on record by the respondents along with the reply affidavit. Respondents in the reply-affidavit have categorically stated that the present OA is barred by the principle of res judicata. Respondents have also stated that the judgment of the High Court has also been affirmed by the Apex Court by dismissing the SLP. At this stage, it will be useful to quote paras 10 and 11 of the reply-affidavit, which thus read:
10. That the present OA is also hit by the principles of res-judicata. It is submitted that the NIH employees filed a Writ Petition No.374/04 (S/B) before the High Court of Uttrakhand at Nainital with the prayer for grant of Pensionery Benefits to the employees o0f NIH as per the CCS (Pension) Rules, 1972 but the said Writ Petition was dismissed by the Honble High Court of Uttarakhand vide detailed order dt. 28.06.2006 and the copy of the same is annexed herewith as Annexure R-1. The appeal filed against this order in the Honble Supreme Court of India was also dismissed and the copy of the order of the Honble Supreme Court is annexed herewith as Annexure R-2. Thus; the applicants have concealed the said fact. Hence, once the prayer of the Applicants for the similar relief has already been rejected, which attained finality after dismissal of the appeal by the Supreme Court of India, the present OA is not maintainable and liable to be dismissed being barred by principles of res-judicata.
11. That the Applicants have suppressed the material facts regarding the filing and dismissal of the above mentioned Writ Petition by the Honble High Court of Uttrakhand as well as Honble Supreme Court of India. Thus, the present OA is liable to be dismissed because the Applicants have suppressed the relevant facts, which would have otherwise prevailed upon this Honble Tribunal before issuing Notice of the present OA and would have resulted in dismissal of the present OA.
4. Applicants have filed rejoinder, thereby controverting that the present OA is barred by the principle of res judicata. Applicants have reiterated that in terms of the letter dated 1.5.1987 all CPF beneficiaries who were in service on 1.1.1986 and are still in service on the date of the issue of the order, will be deemed to have come over to the Pension Scheme. As such, by implication this OM was applicable to the employees of the institutions in terms of the Working Rule No.4.
5. We have heard the learned counsel of the parties and gone through the material placed on record. We are of the view that the present OA can be dismissed for suppression of material facts inasmuch as in para-7 of the OA the applicants have specifically declared that they had not previously filed any application, writ petition, or suit regarding the matter in respect of which this Application has been made before any Court or any other authority or any other Bench of the Tribunal nor any such Application, Writ Petition or suit is pending before any of them, without hearing on merits. As already stated above, the applicants who are members of the National Institute of Hydrology Employees Welfare Forum had filed Writ Petition No.374/2004 before the High of Uttaranchal, which was dismissed on 28.06.2006. The grievance raised by the applicants in that Writ Petition was regarding grant of pensionary benefits in terms of Rule 6 (a) of Working Rule No.2 and a specific prayer was made to issue a writ of mandamus, commanding the respondents to implement National Institute of Hydrology Service Conditions Rules, 1981. This is evident form paras 1 & 4 of the judgment. It may be stated here that Rule 4 of the Working Rule No.2 of National Institute of Hydrology Service Conditions Rules, 1981 has made applicable rules in respect of Central Government employees to its employees subject to such modifications, as may be made by the Governing Body, which includes rules regarding pension, gratuity and superannuation. Rule 6 (a) provides that the employees of the Institute shall have an option to join one of the following two schemes, viz. i) Contributory Provident Fund-cum-Gratuity Scheme and ii) General Provident Fund-cum-pension-cum-Gratuity Scheme and for that purpose option has to be given. In para-7 of the judgment the High Court while interpreting clause (b) of Rule 6 has given the following finding:
7. Clause (b) of Rule-6 clearly provides that the option referred to in clause (a) of Rule-6 shall be exercised in form-I attached to these Rules within a period of three months from the date of appointment and any such option once exercised shall be final. If any employee does not exercise the option within this time limit, he shall be governed by Contributory Provident Fund-Cum-Gratuity Scheme. Since there is no averment in the writ petition relating to option of the members of the Association under clause (a) of Rule-6, therefore, in view of clause (b) of the said Rule-6 all the members of the petitioners Association and the petitioner No.2 shall be governed by the Contributory Provident Fund-cum-Gratuity Scheme.
6. Thus, as can be seen from the portion, as quoted above, High Court has given a categorical finding that the members of the petitioners association shall be governed by the Contributory Provident Fund-cum-Gratuity Scheme and ultimately the Writ Petition was dismissed and it was further held in para-9 of the judgment that representation made by the applicants for switching over to the pension scheme is misconceived and is just to make out a case for getting the chapter opened for exercise of option. Thus, in view of this categorical finding given by the High Court this OA filed by the applicants is not only an abuse of the process of the Court but also barred by the principle of res-judicata. Not only that, as already stated above, applicants have suppressed this material fact from this Tribunal regarding filing of the Writ Petition for the same cause of action before the High Court of Uttranchal and according to us they are not entitled to be heard on merits also. When the learned counsel of applicants was confronted with the aforesaid proposition learned counsel has argued that the issue raised before the High Court of Uttranchal was regarding interpretation of the service rules, whereas applicants are seeking pensionary benefits on the basis of the OM dated 1.5.1987, which made applicants eligible for pensionary benefits, as in terms of the aforesaid OM, applicants shall be deemed to have switched over to the pension scheme even if they have not exercised any option. According to us, it is not permissible for the applicants to re-agitate the issue regarding applicability of pension scheme to them on entirely a different ground, i.e., on the basis of the OM dated 1.5.1987, especially when the Uttranchal High Court has categorically held that the employees of the NIH forum are governed by the C.P.F. Scheme and not by the G.P.F. Scheme. It is not the case of the applicants that they are not employees of the NIH Welfare Forum, who have filed Writ Petition before the Uttranchal High Court and the judgment rendered by the High Court is not binding upon them. Thus, in view of what has been stated above and the fact that the issue involved before this Tribunal is regarding extending of benefit under the Pension Scheme, it cannot be said that the cause of action involved in these two proceedings are different. We fail to understand how the applicants can take assistance from the judgment of the Apex Court in the case of Alka Gupta v. Narender Kumar Gupta, 2010 (10) SCALE 564, as the issue involved before the High Court was whether applicants are covered by the C.P.F. Scheme or the GPF/Pension Scheme or whether the applicants are entitled to the relief based on Pension Scheme. The High Court has declined to grant relief regarding pensionary benefits while interpreting the relevant rules and held that the applicants were governed by the C.P.F. Scheme. The judgment of the High Court is final and binding between the respondent department as well as NIH Employees Welfare Forum, of which applicants are also members. Thus, according to us, the principle of constructive res-judicata is fully attracted. It cannot be said that the cause of action in the present OA as well as before the High Court was different. According to us, in case the High Court has decided the matter against the applicants, ignoring the OM dated 1.5.1987, it was permissible for the applicants to file Review Application before the High Court of Uttranchal and certainly applicants cannot be permitted to file fresh case for the same cause of action based on different grounds. Having not done so and more particularly when the judgment of the Uttranchal High Court has been affirmed by the Apex Court by dismissing the Special Leave to Appeal (Annexure R-2), it was not permissible for the applicants to file the present OA and to obtain a second judgment for the same relief on the same cause of action. At this stage, we wish to refer to the judgment of the Apex Court (three-Judge Bench) in the case of State of U.P. v. Nawab Hussain, (1977) 2 SCC 806, whereby the Apex Court has held that:
The principle of estoppel per rem judicatam is "the broader rule of evidence which prohibits the reassertion of a cause of action." This doctrine is based on two theories: (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief .on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality. and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res iudicata.
But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process. This is therefore another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata, by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has .sometimes been referred to as constructive res judicata which, in reality, is an aspect or amplification of the general principle.
7. The ratio as laid down by the Apex Court in the case of Nawab Hussain (supra) is fully applicable in the facts and circumstances of the case.
8. For the foregoing reasons, OA is bereft of merit, which is accordingly dismissed. We would have imposed exemplary cost upon applicants to file a second frivolous Application before us, which was not maintainable at all, but we leave the matter here.
9. In view of the dismissal of the OA, no orders are required to be passed on MA-2573/2010.
(Smt. Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.