Calcutta High Court (Appellete Side)
Amar Kumar Barik & Ors vs Union Of India & Ors on 8 August, 2019
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Saugata Bhattacharyya
C.A.N. 5847 of 2016
in
F.M.A. 999 of 2016
Amar Kumar Barik & Ors.
-Versus-
Union of India & Ors.
with
C.A.N. 4770 of 2016
in
M.A.T. 780 of 2016
Union of India & Ors.
-Versus-
Amar Kumar Barik & Ors.
For the appellants in FMA 999 of 2016 : Mr. Swapan Kumar Datta,
and the respondents in MAT 780 of Mr. Anindya Lahiri,
2016 Mr. Sambuddha Datta,
Mr. Samrat Dey Paul.
For the appellants in MAT 780 of 2016 : Mr. Anil Kumar Gupta,
and the respondents 1 -3 in FMA 999 Mr. Anuran Samanta,
of 2016 Mr. Rahul Arya,
Mr. Yogesh Kumar Sharma.
For the respondent no.4 in FMA 999 : Mr. Billwadal Bhattacharyya,
of 2016 Mr. Sirsanya Bandopadhyay.
Heard on : June 19, 2019
Judgment on: August 08, 2019
DIPANKAR DATTA, J.:-
1. W.P. 15173 (W) of 2010, an application under Article 226 of the Constitution of
India at the instance of certain employees of a public sector enterprise, i.e., the
National Instruments Limited, Kolkata (hereafter the NIL), was disposed of by a
learned Judge of this Court by a judgment and order dated October 14, 2015. An
order dated April 9, 2010 passed by the Under Secretary to the Government of
India, Ministry of Heavy Industry and Public Enterprises, Department of Heavy
Industry (the respondent no.3 in such writ petition), declining to grant benefits of
a revised scale of pay to the writ petitioners was set aside by the learned Judge
on the ground that the said respondent no.3 sought to reopen issues decided
between the parties in a previous round of writ litigation [W.P. 985 (W) of 2007]
and that he had passed an order thereafter, in derogation of the directives
contained in the judgment dated October 30, 2009 disposing of such writ
petition. The respondent no.3 was, therefore, directed to consider the writ
petitioners' claim afresh, strictly in the light of the observations made in the
judgment dated October 30, 2009, upon granting opportunity of hearing to them.
He was required to pass a reasoned order within 12 weeks from the date of
communication of the order.
2. The writ petitioners, aggrieved by the direction for fresh consideration of their
claims by the self-same authority, i.e., the respondent no.3, have carried the
judgment and order dated October 14, 2005 in an intra-court appeal (F.M.A. 999
of 2016); on the other hand, the respondents 1, 2 and 3 in W.P. 15173(W) of
2010 have challenged the judgment and order dated October 14, 2015 in its
entirety in a separate intra-court appeal (M.A.T. 780 of 2016).
3. Since the two appeals arise out of a common judgment and order, we have heard
the same together. We propose to dispose of such appeals by this common
judgment and order.
4. As would be evident from the aforesaid factual narrative, the appellants in F.M.A.
999 of 2016 (hereafter the writ petitioners) had the occasion to invoke the writ
jurisdiction of this Court in 2007; such writ petition was disposed of by a
judgment and order dated October 30, 2009 passed by a learned Judge of this
Court whereby the claim of the writ petitioners that they were discriminated
against in respect of similarly circumstanced employees of the NIL qua benefits of
revised scales of pay was upheld in the following terms:
"***
This Court finds it difficult, if not impossible, to brush aside the grievances
as ventilated on behalf of the writ petitioners regarding alleged
discrimination. It is true that there cannot be any equality amongst
unequals. But so far the present case is concerned, I find it difficult to hold
that the present writ petitioners stand on a footing different from those
who had been given the benefits, which are now being claimed by the writ
petitioners. Another very significant aspect is that the concerned
organization has always been consistent in keeping provision for such
benefits in the budget assessment.
***
The plea of absence of any direct role cannot be raised in order to permit the respondent to wash its hands of when there is clear discrimination. Article 14 of the Constitution does not, perhaps, allow the State to raise that plea and having regard to the fact that a good number of employees standing on the identical footing have been given the benefits of the recommendations of the 5th Pay Commission, it would not be just and proper on the part of the State respondents to deny the same to the present writ petitioners.
*** Considering all these aspects and in view of the fact that the contradictions are essentially non-antagonistic in nature, the respondent authorities must re-evaluate the entire grievances, as ventilated in the application under Article 226 of the Constitution and reappreciate the same in the light of observations made hereinbefore.
In order to enable it to do so, the writ petitioners must send a copy of the application under Article 226 of the Constitution along with its annexures and of course, a copy of the judgment to the respondent authorities. The said authorities must take necessary action within a period of three months from the date of receipt of the same and of course after giving the writ petitioners or their representatives an opportunity of hearing. Action to be so taken or order to be so passed must also be duly communicated to the writ petitioners within a further period of three weeks. The application, being W.P. No. 985 (W) of 2007, stands accordingly disposed of. "
(emphasis supplied)
5. A reading of the judgement dated October 30, 2009 reveals the genesis of the "pay dispute".
6. In pursuance of direction given by the Hon'ble Supreme Court dated March 14, 1986, the Government of India (hereafter the Government) had appointed a High Power Pay Committee (hereafter the committee) on April 7, 1986 under the chairmanship of a learned Judge of such court. The committee submitted its final report on November 24, 1988 recommending Central Government pay structure for all the 69 public sector enterprises including NIL. By a judgement dated May 3, 1990, the Hon'ble Supreme Court directed implementation of the recommendation of the committee, pursuant whereto a memorandum dated June 12, 1990 was issued by the appropriate department of the Government for implementing the recommendations of the committee. NIL figured at serial no. 39 in the list of public sector enterprises, appended to such office memorandum. Some of the employees of NIL, who have since retired, were given the benefits of revised pay scales at the time of their voluntary retirement from service. The writ petitioners, who had not opted for voluntary retirement but had continued in service without the benefit of the revised pay scales, made several requests for the revised pay scales. Such requests having proved abortive, they had approached the Court of writ by presenting W.P. 985(W) of 2007.
7. The stand taken in its affidavit-in-opposition by the respondents 3 and 4 in such writ petition, as summarised by the learned Judge in the judgment dated October 30, 2009, reads as follows:
"In the Affidavit-in-Opposition filed on behalf of the respondent Nos. 3 and 4, it had been alleged that the salary/wages of the employees of Public Sector Undertakings (PSEs) governed by CDA pattern are monitored by the Pay Commission report. Ministry of Finance constitutes such Pay Commission, which makes recommendations. After examining such recommendations, the Ministry of Finance circulates the same for implementation of Pay Commission report to the PSUs and it is for the administrative department to take necessary action on the basis of the guidelines and the financial position of the PSUs under its control. It is for the PSUs to satisfy all the pre-conditions set forth for the implementation of such Pay Commission report. Implementation is subject to the financial condition of the PSUs and the Government of India does not provide any financial assistance for implementation of such revision. The office Memorandum dated 12.6.1990 is applicable to the PSUs in which 4th Pay Commission report has been implemented with the due procedural approval of the concerned administrative ministry. Since the present case relates to the arrear of 5th Pay Commission Recommendations. It is necessary to refer to the fact that National Instruments Limited was referred to BIFR in 1992 and it could never make any profits thereafter. As such, question of revising the pay scales w.e.f. 1st January, 1996 could just not arise. It had been further claimed that the mention of 5th Pay benefits on the pay slip cannot be construed as an approval of the Government to grant the employees of the NIL such pay revision. There has been no explicit order granting 5th Pay Commission revision to NIL. After the winding up orders had been passed, there could be no reason for the company to revise the Pay Scales in light of the poor financial condition of the company. Failure of any bipartite settlement for not revising pay scale dated 6.10.1997 because of BIFR does not amount to an approval for revising the pay scales. There is no provision for revising the pay scales to the 5th Pay Commission's scales in the proposal for transfer and hence there are no outstanding salary/wages dues on account of 5th Pay revision. The arrangement with Jadavpur University and Calcutta University was just a step taken for protection of the jobs of the employees of the company when BIFR had ordered closure and winding up of the company. The said respondents further claimed that the representation submitted by the petitioners was taken up with the Departmental of Public Enterprises which in turn replied that the decision on payment of arrears of CDA scale of pay may be taken by administrative department keeping in view DPE guidelines on pay revision, financial position of the company and on the basis of prevailing scale of pay. It had been further stated that any payment to some employees, as alleged, if had been done in a wrong manner will not amount to an approval of revision of pay scales. An order of revision of pay scales has to be an explicit order clearly mentioning the conditions and on the basis of the financial condition of the company. Such respondents, thus, sought for dismissal of the writ application."
8. On behalf of the said respondents, the following points (as delineated from the judgment) were urged in defence in course of hearing to have the writ petition dismissed:
(i) the writ petition was not maintainable on the ground of delay as well on the ground that it had not been filed in representative capacity;
(ii) NIL has been running at a loss for years and hence the writ petitioners are not entitled to the benefits, as sought for;
(iii) extension of certain benefits in the matter of pay scale to employees other than the writ petitioners was an intra-family arrangement for mutual benefit at the cost of public exchequer, which does not bind the Government;
(iv) mobilisation of resources to meet the extra burden was not made by NIL;
(v) the claim of discrimination cannot be said to have any rational basis inasmuch as grant of revised pay scale to some of the employees of NIL was a calculated, conscious and designed act with an ulterior motive in which the Government had no role to play;
(vi) NIL has been referred to the Board for Industrial and Financial Reconstruction (hereafter the BIFR) in accordance with the provisions of the Sick Industrial Companies Act, 1985 and unless and until the verdict of the BIFR is available, implementation of the revised pay scales could not be given effect to; in other words, employees of the public sector enterprises which had been referred to the BIFR would not be allowed the benefit of revised scales of pay;
(vii) until and unless necessary funds are generated by NIL, implementation of revised report of the 5th Pay Commission could not be given effect to;
(viii) the Government having written off (loan of) Rs.23,274.91 lakh and also paid Rs.203.48 lakh towards employee related dues, which was much higher than the employees' dues at the relevant point of time as on March 31, 2007, the writ petitioners are not entitled to get the benefit of the recommendations of the 5th Pay Commission.
(ix) any direction to give benefits of the revised scales of pay to the employees of NIL may cause such a heavy financial burden that the enterprise itself may collapse under its own weight; and
(x) the decision of the Hon'ble Supreme Court reported in (2003) 5 SCC 163 (A.K. Bindal and Ors. v. Union of India and Ors.) held that a Government company cannot be identified with the Government itself and an employee of a Government company is not a Government servant entitled to protection under Article 311 of the Constitution and it is the responsibility of the Government company to pay the salary of its employees and if such Government company due to losses suffered does not have the financial capacity to revise or enhance the pay scale, the employees of such company cannot claim any legal right to ask for a direction to the Government to meet the additional expenditure which may be incurred on account of revision of pay scales.
9. The learned Judge noted that the assertion of the writ petitioners (that benefits had been extended to the employees who retired/resigned/expired/separated under the VRS) had raised certain intricate points of law including, inter alia, as to whether extension of such benefits to the employees who had retired/resigned/expired/separated could, by itself, be a sufficient justification for extending the same benefits to the others, i.e., the writ petitioners. It was recorded in the judgment that the respondents sought to wash their hands off while submitting that it could be a calculated internal arrangement for mutual benefit at the cost of public exchequer. It was further observed, upon acceptance of a contention raised by the writ petitioners, that NIL was never intended to be a profit making organisation and its job was essentially directed towards research. These observations were followed by the discussion/direction that we have quoted above in paragraph 4.
10. Admittedly, the Government and its officers did not carry the judgment and order dated October 30, 2009 in appeal. The consequence that ensued is that the decision overruling the contentions advanced in defence and the specific finding that the writ petitioners were victims of discrimination in the matter of extension of revised pay scale benefits, attained finality. The learned Judge, however, left it open to the respondents to revisit the issue of extending benefits of the revised scales of pay to the writ petitioners but in the light of the observations made in such judgment.
11. What followed is the order impugned in the writ petition dated April 9, 2010, whereby the respondent no.3 rejected the claim of the writ petitioners by even going to the extent of observing that the Court was misled on a pivotal fact. The respondent no.3 proceeded in a manner as if he were permitted by the Court to reopen the issues that had been decided in the earlier round of proceedings. According to him, if at all some employees of NIL had been extended the benefits of the revised pay scales, the same was a mistake; and the mistake could not have been rectified by another mistake being committed knowingly. To support the order of rejection, the respondent no.3 appears to have placed reliance on a circular/memorandum which was not even in existence on the date of disposal of W.P. 985(W) of 2007.
12. Appearing in support of M.A.T. 780 of 2016, Mr. Gupta, learned advocate sought interference with the judgment and order under appeal on the basis of the contents of the order dated April 9, 2010 impugned in the writ petition. In his reading of the judgment dated October 30, 2009, the Court while remitting the issue of redressal of the grievances expressed in the writ petition had left the field wide open for the respondents to decide and there was no restriction. The learned Judge of the writ court, it was contended, did not appreciate the issue in the proper perspective and returned findings, which are unsustainable in law and, therefore, the same are liable to be set aside. He, thus, prayed for orders allowing M.A.T. 780 of 2016 and dismissing F.M.A. 999 of 2016.
13. Per contra, Mr. Datta, learned senior advocate for the contesting respondents in M.A.T. 780 of 2016 (the writ petitioners) urged before us that the judgment and order dated October 14, 2015, to the extent the writ petitioners have accepted the same, did not merit appellate interdiction. He, however, contended that the doctrine of finality of decisions would lose all meaning if the appellants in M.A.T. 780 of 2016 were allowed to re-argue points which were not accepted in course of the first round of writ litigation between the parties and no appeal was presented from the decision terminating it. It was also contended that new/fresh points have been taken in the impugned order dated April 9, 2010 to defeat and/or frustrate the claims of the writ petitioners, which the respondents did not urge in course of hearing of W.P. 985(W) of 2007 despite such points being available to be urged. That apart, the action of the respondent no.3 in the writ petition to proceed on the basis of his understanding of the decision in A.K. Bindal (supra) should not be encouraged particularly having regard to the fact that the Court in the earlier round did have the occasion to consider the same and overruled the contention based thereon. Finally, the contention advanced was that the respondent no.3 had overreached the Court while seeking to overcome the finding of the Court that the writ petitioners were subjected to discrimination by referring it as a mistake to extend benefits of revised scales of pay to the retired employees. Official acts, it was contended, are presumed to have been validly made and no material was advanced to rebut this presumption before the writ court; therefore, shrugging off the responsibility by referring to 'mistake' is incredulous. Based on such contentions, dismissal of M.A.T. 780 of 2016 was prayed for by Mr. Dutta.
14. In support of F.M.A. 999 of 2016, Mr. Datta invited our attention to paragraph 20 of the decision of the Hon'ble Supreme Court reported in AIR 1987 SC 537 (Comptroller and Auditor General v. K.S. Jagannathan) and urged that the writ petitioners were entitled, in view of the findings arrived at by the learned Judge for setting aside the order dated April 9, 2010, to have a mandatory direction on the respondents in the writ petition to extend the benefits of the revised scales of pay to the writ petitioners.
15. We have heard the parties at length and perused the materials on record.
16. It would be worthwhile to take note of the contents of the order dated April 9, 2010 signed by Mr. M. L. Sikka, the Under Secretary to the Government of India, Ministry of Heavy Industry and Public Enterprises, Department of Heavy Industry, before we proceed to decide the contentious issues. A committee was constituted to examine the issues and it was the decision of the committee refusing to admit the writ petitioners' claims that were communicated by such order. In our reading, the summary of the order is as follows:
By an order dated October 30, 2009, the Court remanded back to the Department of Heavy Industry (hereafter the DHI) for re-evaluation of the grievances of the employees of the NIL in respect of pay revision. Accordingly, the DHI formed a four member committee to hear the petitioners afresh. The petitioners sought pay revision on the basis of the recommendations of the 5th Pay Commission. In support of their demand, they placed reliance on the following circumstances as being mitigating factors:
a. The order of the Hon'ble Supreme Court dated May 3, 1990, relating to the recommendations of the High Power Pay Committee, unequivocally required pay parity for CDA Pattern employees in all the Central Public Sector Undertakings (hereafter the CPSUs), irrespective of internal resources of the CPSUs in question. The same was communicated by way of Department of Public Enterprise (hereafter DPE) order dated October 24, 1997, requiring necessary action in respect of the CPSUs. b. Having provided 5th Pay Commission wages to around 500 employees, it would be wrong if the same is not extended to the other employees of the CPSUs.
c. Having received interim relief in the nature of 5th Pay Commission wage, the same amounts to substantive pay revision.
Before deciding on merits, the order delved into uncovering the sick nature of the NIL. Although the BIFR had initially recommended winding up of the NIL on account of its fast depleting profitability and net worth, the same was reversed by the AAIFR on appeal. It was finally settled that Jadavpur University would take over the NIL, with manpower and other assets, with certain discounts being provided by the Government of India in the nature of writing off of certain liabilities. Conclusively, one may absolutely opine that the NIL was a loss making CPSU with degraded internal resources of its own.
With regard to the DPE order dated October 24, 1997, the committee mentioned that the same could not be read to be a direction for pay revision of all CPSUs following CDA pattern. The correspondence, per the committee, was only a dictate to such CPSUs as were financially well off to bear additional expenditure on account of pay revision. This interpretation of the order, is further corroborated by a combined reading of DPE OMs dated October 14, 2008, and November 9, 2006, which stipulate that pay revision is subject to resources at the disposal of the concerned CPSU. The orders conjointly propose the inference that no budgetary support from Government can be sought in respect of supporting pay revision in case of a non-profit making CPSUs. The concerned department having considerably taken note of the quoted order of the Hon'ble Supreme Court, communicated the same. Furthermore, it was stated that since the High Court did not ipso facto direct payment of 5th Pay Commission wages by the respondents, the High Court too impliedly supported a contention that the petitioners were not entitled to any pay revision as such. The committee cited the case of A.K. Bindal (supra), in justifying its opinion that no pay revision and/or payment of arrears on account of such revision, can occur in the case of financially sick CPSUs. In the instant case, the Apex Court had ruled that since CPSU employees are not 'civil servants', they do not have guaranteed protection under Article 311. Therefore, it is not open to them to rely on budgetary support from the Union of India, in seeking revision of pay in the light of recommendations of subsequent pay commissions. The DPE order dated July 9, 2003, mentions something on similar lines.
The Department of Economic Affairs (Ministry of Finance) order dated October 6, 2005 specifies that it is wholly against the Government policy to pay wage revision arrears to employees of sick CPSUs from Government of India budgetary support. Also, the Department of Heavy Industry (hereafter DHI) order dated November 27, 2001 notifies that for VRS in CPSUs under DHI, arrears of wages on account of revision shall be discounted in computing eligible amounts. The NIL disobeyed all such correspondences.
Furthermore, DHI's sanction order dated August 12, 2002, wherein DHI mandated arrears of salary and wages for VRS implementation to be payable only on account of 4th Pay Commission, stood prima facie violated. In the light of the above, the committee opined that earlier instances of payment on account of 5th Pay Commission scales in respect of employees of the NIL were wholly irregular and illegal. The same mistake cannot be condoned by another illegal act of requiring further payments on account of the same mistake.
The committee further submitted that the NIL consists of two kinds of employees, CDA and IDA. The proposition to allow arrears on account of pay revision to only CDA employees, when the same kind of responsibilities and actions are done by IDA employees as well, would be violative of the Constitutional principle of 'equal pay for equal work', besides being against the Government policy.
Lastly, it was observed that the proposition that the NIL is not a profit making organization and therefore the DHI circulars are redundant in its operation, is wholly wrong. The committee mentioned that the NIL has always existed as a profit making CPSU. If not a profit intending CPSU, the same would never have been referred to BIFR.
The committee, on account of the above, rejected the contentions of the petitioners to have pay revision and/or payment of arrears on account of pay revision."
17. We have looked into the affidavit-in-opposition of the Union of India, the respondent no.1 in W.P. 985(W) of 2007. It appears to have been affirmed by Mr. Manohar Lal Sikka, Under Secretary to the Government of India, DHI. The deponent of such affidavit and the author of the impugned order dated April 9, 2010, we presume is the same gentleman. In the affidavit filed in W.P. 985(W) of 2007, a stand was taken that the DHI had released an amount to the NIL for meeting the payments due to the employees who had asked for voluntary retirement and such amount was paid in lump sum without specifically mentioning the amount that was to be paid to each employee. It was the further categorical stand that the NIL disbursed amounts to its employees upon the employees making the calculations and the financial statements were not made available to the DHI. The latter was thus unaware of the payments released in favour of individual employees. It was only when the demands of pay revision were put forth by the employees of the NIL that the DHI came to know of such erroneous disbursements. Emphatically, it was urged that any wrong payment to some employees will not amount to an approval of revision of pay scales; such an order for revision must be an explicit order clearly stating the conditions and such revision will be made looking at the financial condition of the NIL.
18. It is pellucid that the Union of India had brought to the notice of the Court that what was paid to the retired/separated employees was not regular and in fact was the result of an erroneous act, and no claim for equal treatment could be maintainable if it were based on negative equality; yet, the Court in its judgment and order dated October 30, 2009 held the action of the respondents before it to be discriminatory and directed the grievances to be re-appreciated in the light of the observations contained in the judgment. The said judgment and order attained finality by reason of the same not being carried in appeal by any of the parties to the proceedings.
19. Although the learned Judge did not use the term "consider" or "reconsider" while remitting the issue to the Government, we may seek some guidance from the decision of the Supreme Court reported in (2006) 3 SCC 674 (A.P. State Road Transport Corporation v. G. Srinivas Reddy) with regard to the effect of the order dated October 30, 2009 directing the authorities to re-appreciate the grievances of the petitioners in the light of the observations made therein. The relevant passages from such decision are quoted below:
"14. We may, in this context, examine the significance and meaning of a direction given by the court to 'consider' a case. When a court directs an authority to 'consider', it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. There is a reason for a large number of writ petitions filed in the High Courts being disposed of with a direction to 'consider' the claim/case/representation of the petitioner(s) in the writ petitions.
15. Where an order or action of the State or an authority is found to be illegal, or in contravention of the prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. When the High Court finds that the order or action requires interference and exercises the power of judicial review, thereby resulting in the action/order of the State or authority being quashed, the High Court will not proceed to substitute its own decision in the matter, as that will amount to exercising appellate power, but require the authority to 'consider' and decide the matter again. The power of judicial review under Article 226 concentrates and lays emphasis on the decision-making process, rather than the decision itself.
16. The High Courts also direct the authorities to 'consider', in a different category of cases. Where an authority vested with the power to decide a matter, fails to do so in spite of a request, the person aggrieved approaches the High Court, which in exercise of the power of judicial review, directs the authority to 'consider' and decide the matter. In such cases, while exercising the power of judicial review, the High Court directs 'consideration' without examining the facts or the legal question(s) involved and without recording any findings on the issues. The High Court may also direct the authority to 'consider' afresh, where the authority had decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration. In such cases also, the High Court may not examine the validity or tenability of the claim on merits, but require the authority to do so.
17. Where the High Court finds the decision-making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to 'consider' the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the court. But where the High Court without recording any findings, or without expressing any view, merely directs the authority to 'consider' the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the court.
18. We may also note that sometimes the High Courts dispose of the matter merely with a direction to the authority to 'consider' the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the court to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to 'consider' the matter afresh. Be that as it may."
20. The word 'consider' connotes active application of mind and consideration of all relevant aspects of the matter. Merely because the learned Judge used the expressions 're-evaluate' and re-appreciate' and not 'consider', in our opinion, did not have the effect of clothing the Government with the power to ignore the unchallenged observations/findings contained in the judgment and order in the first round of litigation. We are also of the considered view that paragraph 17 of G. Srinivas Reddy (supra) is apt for deciding the issue emerging here. The worth of the stand taken by the Union of India before the Court notwithstanding, His Lordship did not accept the same and proceeded to record that "it would not be just and proper on the part of the State respondents to deny the same to the present writ petitioners" and it was "difficult to hold that the present writ petitioners stand on a footing different from those who had been given the benefits, which are now being claimed by the writ petitioners". It was not an unlimited enquiry that the order of October 30, 2009 permitted the Government/respondents to undertake. The exercise of re-evaluation and re- appreciation had to be conducted bearing in mind, inter alia, these observations/findings. It was not a case where the Court without recording any findings, or without expressing any view, had merely directed re-evaluation and re-appreciation having regard to the facts and circumstances and according to law, without the respondents' power being circumscribed by any observations or findings. The adverse observations/findings were binding on the respondent authorities and any view at variance thereof would not commend acceptance. It seems to us to be so that the respondents had proceeded unmindful of the limited enquiry that was permitted and, in the process, disregarded the order by returning findings which are completely at variance with the findings returned by the Court that the writ petitioners were victims of discrimination and that they deserved similar benefits as extended to the retired employees of the NIL.
21. There is one other aspect, sight of which cannot be lost. It is the doctrine of finality of decisions. Points which were urged and points which could have been urged but have not actually been urged in course of a proceeding before a Court of law that proceeds to deal with the issues before it and decides the same on merits cannot, in our view, be urged once again in course of writing an order purportedly in compliance with the Court's order. If such course of action were allowed, the Court's earlier judgment/order (accepted by all the parties) would stand nullified. It could be so that the judgment/order is patently erroneous but for having the same reversed, law provides adequate remedy. A party could appeal against it or seek a review, if the conditions therefor are fulfilled. Unless such judgment/order is shown to have been passed by a court lacking inherent jurisdiction or such judgment/order is alleged to have been obtained by practising fraud, the same binds the parties to the lis and it is not open to the officer/authority who is bound to implement the order to upset the findings rendered by the Court by relying upon the points already urged or by referring to the points which, although available to be urged, were not actually urged before the Court.
22. A coordinate Bench of this Court in its decision reported in 2009 (1) CHN 27 (Indu Bhusan Jana v. Union of India & ors.) had the occasion to observe as follows:
"11. Upon an order attaining finality, it matters little as to whether it was erroneous. A party aggrieved by an order has to work out his remedies within the legal framework. If an issue or the entire lis is concluded upon a finding being rendered and such finding remains unchallenged, it is no longer open to the party to undo the effect thereof at any subsequent stage or collaterally unless it is demonstrated that the finding was obtained by fraud or the Court lacked jurisdiction to pass the order. The hierarchy in the judiciary exists to afford litigants to climb up the ladder in pursuit of justice and to right a wrong committed at a lower level. But if a litigant accepts an order, he does it to his prejudice and binds himself thereby."
We share such view.
23. Irrespective of the merits of the points discussed in the order impugned dated April 9, 2010, we are of the clear opinion that the same travels beyond the limits of the enquiry permitted by the order dated October 30, 2009 passed on W.P. 985(W) of 2007 and the learned Judge was perfectly justified in interfering with the same and quashing it at the time of disposal of W.P. 15173 (W) of 2010.
24. For the reasons aforesaid, MAT 780 of 2016 stands dismissed together with pending applications, if any, therein at the instance of the parties to it.
25. It is now time to deal with the other appeal, i.e., FMA 999 of 2016.
26. Mr. Dutta has placed strong reliance on paragraph 20 of the decision in K.S. Jagannathan (supra). It reads as follows:
"20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
(emphasis supplied)
27. According to Mr. Dutta, the learned Judge having found the Under Secretary to have disregarded the order dated October 30, 2009, remitting the matter to him would serve no purpose as the respondents are opposed to extending the benefits of pay revision to the writ petitioners and this being a proper case, the Court itself should have passed the order for extension of pay revision benefits which the concerned officer of the Government should have made had he properly and lawfully exercised his discretion.
28. What follows from the above extracted passage is that in a fit case where the Court finds that the government or a public authority has acted in a manner to frustrate the object of conferment of discretion on it, it may pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or the public authority. As has been held in G. Srinivas Reddy (supra), a high court does not substitute its own decision as if exercising appellate powers. The high court may direct the public authority to consider the matter afresh, where the authority is found to have decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration. It is only in exceptional cases to prevent injustice that the Court may take recourse to giving directions or passing orders, which in the normal run of events should have been given or made by the authority.
29. The facts of the case are not such that the Government/the relevant public authority should not be given one last opportunity to exercise its discretion in a proper and lawful manner. We hope and trust that an appropriate order shall be passed in the light of the unchallenged findings/observations contained in the judgment and order dated October 30, 2009 as early as possible but not later than 3 (three) months from date of service of a copy of this judgment and order.
30. FMA 999 of 2016, thus, stands disposed of together with connected application, if any, at the instance of the parties to it.
31. The parties shall bear their own costs.
(Saugata Bhattacharyya, J.) (Dipankar Datta, J.)