Nilachakra Construction vs State Of Odisha And Others .... Opposite ... on 13 December, 2021

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Orissa High Court

Nilachakra Construction vs State Of Odisha And Others .... Opposite ... on 13 December, 2021

1. By filing the present writ application, the Petitioner is trying to knock the door of justice for the 4th successive time to get the desired relief as prayed for in the writ petition. W.P.(C) No.25717 of 2017 Page 1 of 28

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2. The present writ application has been filed with a prayer to quash the impugned letter dated 21st September, 2017 under Annexure-29 on the ground the same is not in conformity with the direction dated 27th June, 2017 passed by this Court in W.P.(C) No.9412 of 2017 as W.P.(C) No.9412 of 2017 was disposed of vide order dated 27th June, 2017 by setting aside the order dated 6th December, 2014 and remitting the matter back to the Executive Engineer, Rural Works Division, Nayagarh-Opposite Party No.3 for fresh consideration with a further direction to the petitioner that he will appear before the Opposite Party No.3 on 25th July, 2017 and produce the certified copy of the order dated 27th June, 2017 along with relevant documents in support of his claim. Further opposite party no.3 is directed to examine the same and pass a reasoned order within a period of four weeks from the date of appearance of the Petitioner. The Petitioner has also prayed for a direction to the Opposite Parties for enhancement of the labour component on the basis of applicable approved modalities specified in the Government Circulars of the year 1986 and 1991 as has been directed by this Court in its 1st writ application bearing W.P.(C) No.4856 of 2012 vide order dated 15th May, 2012. Therefore, the Petitioner has essentially prayed for a direction to the authorities to W.P.(C) No.25717 of 2017 Page 2 of 28 // 3 // calculate his enhanced claim which has already been submitted before the authorities and to disburse the balance amount of Rs.17,42,935/- along with interest.

3. Heard Dr. K.N. Tripathy, learned counsel for the Petitioner and Mr. P.K. Muduli, learned Additional Government Advocate for the State Opposite Parties. Perused the records.

4. The facts which are relevant for adjudication of the dispute involved in the present writ petition are that the Government of Odisha in its Rural Work Department invited tenders for construction/up-gradation/maintenance of Rural Roads and C.D. Works under Pradhan Mantri Gram Sadaka Yojana (PMGSY). Since the bid submitted by the Petitioner was the lowest, the Superintendent of Engineer, Bhubaneswar R.W. Circle accepted the Petitioner's bid and issued work order in favour of the Petitioner after complying with all procedural formalities.

5. The Clause 16.2 of the Bid documents for normal PMGSY/ADM Assisted PMGSY, the captioned work had been indicated to be completely manual labour oriented work. Further as per Clause (f) of the Appendix to Part-I of the General Conditions W.P.(C) No.25717 of 2017 Page 3 of 28 // 4 // of the Contract entered into between the Petitioner and the Opposite Parties (in short 'GCC'). The employer was required to pay minimum wages fixed by appropriate Government. As per Clause(1) of the Contract Data of GCC, 'Employer' means the Commissioner-cum-Secretary to Government in R.D. Department, Government of Odisha, Bhubaneswar.

6. It is needless to mention here that the Petitioner had accepted the terms and conditions provided in the agreement and executed the form of contract with the Government of Odisha for execution of the work. While the work was being carried out, the minimum wages, as prescribed by the Government under the Minimum Wages Act, 1948 in respect of the Labourers, i.e. unskilled, Semi-skilled, skilled and highly skilled workers engaged in the construction works, were revised. As per revised rate, the minimum wages payable to unskilled labourer was enhanced to Rs.55/- to Rs.90/- per labourer per day. The dispute arose when the Government of Odisha estimated the work is being executed by the Petitioner by taking into consideration the rate of wages for unskilled labourer as Rs.55 per day. The claim of the Petitioner is that the Government was required to pay enhanced/escalated wages W.P.(C) No.25717 of 2017 Page 4 of 28 // 5 // payable to the unskilled labourers pursuant to the statutory increase in the payment of Minimum Wages Act.

7. In support of its claim, the Petitioner has relied upon a judgment of this Court in the case of M/s. Nilgiri Engineering Co- operative Society Ltd. vrs. State of Orissa represented by the Commissioner-cum-Secretary, R.D. Department and others reported in 2011 (Sup-II) OLR-683. Learned counsel for the Petitioner submitted that the facts in the case of M/s. Nilgiri Engineering Co-operative Society Ltd. are similar to the facts of the present case.

8. The Petitioner vide his letter dated 20th January, 2012 addressed to the Opposite Parties raised the claim with regard to enhanced wage payable to the unskilled labourer as per revised rate under the Minimum Wages Act, 1948. The specific claim of the Petitioner under the aforesaid letter was for enhancement of minimum wages for unskilled labourers from Rs.55/- to Rs.90 per day and taking into consideration such enhancement, accordingly, the Petitioner had claimed a total sum of Rs.17,42,635,93. W.P.(C) No.25717 of 2017 Page 5 of 28

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9. Since the Opposite Parties did not do anything and preferred to sit over the matter, the Petitioner was compelled to approach this Court by filing W.P.(C) No.4856 of 2012 praying for issuance of a writ of mandamus to the Opposite Parties directing them to pay the enhanced rate of wages of labour component. This Court vide order dated 15th May, 2012 disposed of the writ petition with the following observations:-

"02. 15.05.2012 It is stated by learned counsel for both the parties that this writ petition is squarely covered by the judgment 19.09.2011 (M/s. Nilgiri Engineering Co-operative Society Ltd. vrs. State of Orissa represented by the Commissioner-cum-Secretary, R.D. Department and others) passed by this Court in W.P.(C) No.2114 of 2010.

In view of the above statement, this writ petition is also disposed of in terms of the aforesaid judgment passed by this Court."

It is stated by learned counsel appearing for the Petitioner that the aforesaid order dated 15th May, 2012 passed in W.P.(C) No.4856 of 2012 has been confirmed by the Hon'ble Supreme Court of India vide order dated 21st December 2014 passed in SLP(Civil) CC No.2645 of 2014.

W.P.(C) No.25717 of 2017 Page 6 of 28

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10. After disposal of the W.P.(C) No.4656 of 2012, the Opposite Parties vide their letter dated 19th May, 2012 rejected the claim of the Petitioner with regard to enhance/escalated minimum wages and refused to pay the claims of the petitioner in that regard stating therein that there is no clause in the agreement for payment of price under the terms and conditions of the tender.

11. After rejection of the Petitioner's claim vide letter dated 19th May, 2012, the Petitioner is stated to have submitted another bill, enhanced/escalated minimum wages vide his letter dated 6th May, 2013 enclosing their office memorandum dated 7th April, 1986 and 28th October, 1991 to justify his claim of enhanced rate of wages under the Minimum Wages Act, 1948.

12. In course of his argument, learned counsel for the Petitioner referred to a decision taken in 28th State Level Standing Committee Meeting held on 18th December, 2013 in the conference hall of the Chief Secretary to Government of Odisha in connection with payment of labour escalation bill. The attention of this Court was specifically drawn to paragraph-7. Paragraph-7 of the decision taken in the aforesaid meeting reads as follows:- W.P.(C) No.25717 of 2017 Page 7 of 28

// 8 // "7. It was stated that in SBD of PMGSY work, there is no provision of reimbursement of labour escalation bills. Hon'ble Supreme Court in SLP(C) CC No.11995/2012 have allowed for escalation bills towards enhanced minimum wages.

Hence it was suggested that payment of labour escalation bill is to be done as per labour escalation formula being followed by all non- PMGSY works. Accordingly, escalation formula may be incorporated in SBD of PMGSY for new works. For ongoing and completed PMGSY projects, payment of labour escalation bills should be based on actual.

The SLSC agreed to the same and approved the proposal."

13. It is further contended by the learned counsel for the Petitioner that as a result of non-compliance of the direction passed earlier order dated 15th May, 2012 by this Court, the Petitioner had filed a Contempt application bearing CONTC No.1045 of 2013 wherein the Principal Secretary Rural Development and the Engineer-in-Chief, Rural Works were directed to appear in person by order of the Court. Both the Officers assured this Court that steps have been taken to reimbursed the enhance minimum wages to the contractor who have executed the PMGSY work in the State of Odisha and the issue has been taken up in High Level Committee meeting held on 28th March, 2014. In support of his claim, the W.P.(C) No.25717 of 2017 Page 8 of 28 // 9 // learned counsel for the Petitioner also referred to the decision taken in the High Level Committee dated 28th March, 2014. On perusal of the decision taken in the aforesaid meeting dated 28th March, 2014, it is seen that a decision has been taken to implement the order passed by this Court; no further SLP is to be filed against the order passed by the Hon'ble High Court of Orissa; Government of India have agreed to release the fund on account of escalation of labour charges; in the event Government of India refused to release such fund, then the additional burden is to be borne by the State Government arising on account of escalation of labour charges under PMGSY charges.

14. To strengthen his claim for getting enhanced wages, the learned counsel appearing for the Petitioner relied upon several inter departmental communications. Gist of such communication is that the Government is willing to pay the enhanced minimum wages, however, the same is required to be approved by the appropriate departmental authorities before finalizing and disbursing the claim amount.

W.P.(C) No.25717 of 2017 Page 9 of 28

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15. It is further alleged by the Petitioner that to deprive the Petitioner to get his legitimate claim on account of escalated minimum wages as per the revision in the minimum wages act, 1948, the authorities introduced the office memorandum dated 9th June, 2014. According to the Petitioner, the same is contrary to the decision of this court as well as Hon'ble Apex Court and the same is only designed to take away the effect of the judgments passed by this Court as well as Hon'ble Apex Court. It is further submitted that on the basis of the said office memorandum dated 9th June, 2014, the claim of the Petitioner was recalculated without affording any opportunity of hearing to the Petitioner and finally, the authorities have arrived at a conclusion that the Petitioner is eligible to get a sum of Rs.2,20,369/- on account of hike in labour rate. Due to such dispute, this Court vide order dated 20th November, 2014 passed in CONTC No.1045 of 2013 directed the parties to have a joint sitting to reconcile the records and to finally quantify the amount payable to the Petitioner.

16. While the matter was sub-judice before this Court, the Petitioner approached the Executive Engineer, Rural Works Division, Nayagarh on 20th May, 2014 where he was offered some W.P.(C) No.25717 of 2017 Page 10 of 28 // 11 // cheques for settlement of his claim amount of enhance wages. However, the Petitioner refused to accept the same as the same was not in conformity with the State Government Circulars referred to herein above by the Petitioner. On 6th December, 2014, the Executive Engineer informed the Engineer in Chief that the Petitioner had refused to accept the payment on account of enhanced labour claim.

17. Despite the aforesaid exercise undertaken by the Courts and various authorities, the claim of the Petitioner remained hanging in limbo. Which has compelled the Petitioner to again approach this Court by filing writ petition bearing W.P.(C) No.6213 of 2016 seeking indulgence of this Court in the matter of disbursement of his claim with interest @ 18% per annum. On 1st September, 2016, the said writ petition was disposed of along with a batch of similar writ petitions with the following observation:-

"In view of the entire issue having been decided by the Hon'ble Apex Court nothing remains to be adjudicated, further in the present writ petition the opposite parties are only to comply the order passed earlier."

W.P.(C) No.25717 of 2017 Page 11 of 28

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18. It is further submitted by the learned counsel for the Petitioner that since the Opposite Parties did not carry out the direction of this Court in W.P.(C) No.6213 of 2016, a series of contempt applications bearing CONTC No.1721 to 1742 of 2016 was filed before this Court. The contemnor paid a paltry amount of Rs.26,03,640.00 out of total amount of Rs.6,75,89,676.00 through RTGS. It is submitted that amount offered was also offered earlier and no further exercise was undertaken, pursuant to the direction of this court, to recalculate the claim of the Petitioner after disposal of the above noted writ petitions.

19. It is apt to mention here that the hearing in the above mentioned contempt matter took place on 22nd December, 2016. The Opposite Parties contemnors filed their show cause affidavit stating therein that the order dated 1st September, 2016 have been fully complied with. However, the same was objected to by the learned counsel for the Petitioner. Finally, this Court had directed the contempt matters be posted along with the writ petitions for final hearing on 12th January, 2017. The writ petitions were heard finally by this Court and the same were finally disposed of by holding that the order dated 1st September, 2016 has already been W.P.(C) No.25717 of 2017 Page 12 of 28 // 13 // complied with and after recalculation the amount has been deposited in the accounts of the Petitioners through RTGS and further liberty was granted to the Petitioners to approach this Court whenever fresh cause of action arises. For better understanding the order dated 12th January, 2016 passed in Misc. Case No.18315 of 2016 arising out of W.P.(C) No.8702 of 2016 is quoted here below:-

"09. 12.1.2017 Misc. Case No.18315 of 2016 This Misc. Case has been filed by the petitioner with a prayer to direct the opposite parties to disburse the amount along with 18% interest as directed by the Court on 1.9.2016 while disposing batch of writ petition.

Heard.

The learned Addl. Government Advocate submits that the order has been complied with and after recalculation the amount has been deposited in the accounts of the petitioner.

The learned counsel for the petitioner submits that the recalculation was not correctly made.

Since the writ petitions were disposed of on 1.9.2016, we are not inclined to entertain the Misc. Case. Thus, if fresh cause of action arose, it is open to the petitioner to challenge the same.

W.P.(C) No.25717 of 2017 Page 13 of 28

// 14 // Accordingly, the misc. case is disposed of."

20. The record further reveals that the Petitioner filed two review petitions bearing RVWPET No.27 of 2017 and RVWPET No.64 of 2017 challenging the order dated 1st September, 2016 passed in W.P.(C) No.6213 of 2016. The 1st review petition was withdrawn to file a better application and 2nd review petition has been disposed of in view of the order passed in Misc. Case No.18315 of 2016 and further granting liberty to the Petitioner to approach this Court after fresh cause of action arises and as such the review petition had been dismissed.

21. At this juncture, it would be relevant to refer to order dated 1st September, 2016 passed in W.P.(C) No.6213 of 2016 and the operative portion of the order as contained in paragraph-5 of the common order is quoted herein below:-

"5. In view of the facts and circumstances of the case, this Court disposes of all these Writ Petitions with a direction to the opposite parties to recalculate the enhanced rate of wages of labour component as per the earlier bill and part of which has already been disbursed to the petitioner. The above exercise shall be W.P.(C) No.25717 of 2017 Page 14 of 28 // 15 // completed within a period of four weeks from the date of production of certified copy of this order and the balance amount shall be disbursed in favour of the petitioner within a period of four weeks thereafter."

. 22. Once again after dismissal of the review petitions, the petitioner preferred writ petition bearing W.P.(C) No.6966 of 2017. However, the same was withdrawn vide order dated 27th April, 2017 with liberty to file a better application. Thereafter, another writ petition bearing W.P.(C) No.9412 of 2017 was filed by the petitioner. W.P.(C) No.9412 of 2017 has been disposed of with the following observation:-

"5. Considering above, this Court while setting aside the order dated 1st June, 2012 under Annexure-22 remits the matter back to the Opposite Party No.3 for fresh consideration. The petitioner shall appear before the Opposite Party No.3 on 25th July, 2017 and produced the certified copy of this order along with relevant documents in support of its claim. The Opposite Party No.3 shall examine the same and pass a reasoned order within a period of four weeks from the date of appearance of the Petitioner. The writ petition is accordingly disposed of."

W.P.(C) No.25717 of 2017 Page 15 of 28

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23. Pursuant to the order dated 27th June, 2017 passed in W.P.(C) No.9412 of 2017, the Petitioner appeared before the Opposite Party No.3 on 25th July, 2017. Vide order dated 21st September, 2017, the Executive Engineer Rural Works Division, Nayagarh informed the Petitioner to produce the supporting bills in support of his claimed amount along with detailed calculation to workout additional amount, if any, at an early date.

24. Challenging the said communication dated 21st September, 2017, the Petitioner has again approached this Court by filing the present writ petition.

25. The Opposite Party No.3 has filed a counter affidavit in the present writ petition. A specific stand has been taken by the Opposite Party No.3 in the counter affidavit to the effect that the Government Circulars of the year 1986 and 1991 are not applicable to the facts of the present case. It is further submitted that each item of work to be executed as indicated in the agreement consists of (I) Material component (II) Machinery component and (III) Labour component. The labour component of each item of work has been worked out and calculated basing on the quantity of the work executed. Accordingly, the enhanced value labour cost has been W.P.(C) No.25717 of 2017 Page 16 of 28 // 17 // calculated. The final calculation done by the Opposite Party No.3 has been appended to the counter affidavit as Annexure-A/3.

26. The Opposite Party No.3 has further stated in his counter affidavit that since actual labour component has been taken into account for calculation of the enhanced wages, the question of assuming the labour percentage based on some of the Govt. circulars is untenable and liable to be rejected. Further, the Opposite Party No.3 has disputed the fact that the PMGSY work was manual and labour oriented work. It has been stated by the Opposite Party No.3 that with the enhanced labour component based on the revised minimum wages, the dues payable to the petitioner have been calculated. It is further stated that the enhanced labour cost has been calculated basing on actual labour component of the bill. Further the learned Addl. Govt. Advocate, in course of his argument, has referred to the proceeding of the State Level Standing Committee meeting held on 18th December, 2013 to submit that the escalated labour cost due to increase in minimum wages has to be calculated on actual basis and on that basis only the calculation has been made in Petitioner's case.

W.P.(C) No.25717 of 2017 Page 17 of 28

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27. In reply to the Petitioner's allegation with regard to letter No.9777 dated 12th May, 2014 to the extent that the State Government has agreed that escalation of minimum wages be calculated on the basis of the modalities formulated under the Government circulars of the year 1986 and 1991, it was submitted by the learned Addl. Govt. Advocate for the State that the said letter reveals that no such decision or concession is there to calculate enhance minimum wages basing on the Government circulars of the year 1986 and 1991. Rather the said letter reveals that the Government of India has refused to provide the fund on account of additional burden which has fallen on the State Government due to escalation of minimum wage rate. The State Government has been advised to utilize the Rs.150 crores budget provision towards State share of PMGSY for payment of labour escalation cost. Finally, the Engineer in Chief has sought for approval of the State Government to make payment to the Petitioner and similarly situated other contractors to reimburse the escalated cost of the project due to increase in the rate of minimum wages.

28. The decision of the Executive Engineer to ask the Petitioner to get all the wage register from the Petitioner was to ascertain as to whether the enhanced labor rates were actually paid to the labourers W.P.(C) No.25717 of 2017 Page 18 of 28 // 19 // engaged in the work. Further, the allegation of the Petitioner with regard to the fact that the calculation was done behind its back has been strongly denied by the Opposite Party No.3 in its counter affidavit and the Opp. Party No.3 has further stated that ample opportunity of hearing was given to the Petitioner while recalculating his claim on account of enhancement in minimum wage rate. Since the petitioner refused to accept the amount so calculated, the differential amount has been transferred to the Petitioner's account through RTGS.

29. The grievance of the petitioner in the present writ petition, as it appears, relates to non-payment of escalated price due to increase in minimum wages under the Minimum Wages Act, 1948 and further to calculate the escalation by following modalities prescribed in two circulars of the year 1986 and 1991 issued by the Government of Odisha and for payment of interest on the claimed amount owing to delay in making the payment. Such a prayer of the Petitioner has been vehemently opposed by the learned Additional Government Advocate on the ground that the two circulars referred by the Petitioner are not applicable to the facts of the present case. However, the Petitioner has been filing successive writ petition W.P.(C) No.25717 of 2017 Page 19 of 28 // 20 // claiming benefit under the aforesaid two circulars. Moreover, the direction of this Court in the first writ petition filed by the Petitioner was to calculate and pay the dues of the Petitioner following the principle laid down by this Court in M/s. Nilgiri Co-operative Society Ltd. Case (supra). Further the Petitioner is not entitled to any interest as the Petitioner had earlier refused to accept the enhanced price due to increase in labour component of the bill on several occasions and the petitioner, as it emerges from the facts of the case, has instead of producing the records and documents as required by the authorities vide letter dtd.21.09.2017 (impugned letter in the present writ petition) has preferred to rush to this court for a direction.

30. It also emerges from the records that this Court while disposing of the first writ petition bearing W.P.(C) No.4856 of 2012 vide order dated 15th May, 2012 had directed that since the writ petition is squarely covered by the judgment dated 19th September, 2011 passed in M/s. Nilgiri Co-operative Society Ltd. Case, and hence, the relief in Petitioner's case has to be worked out within the scope and purview of the aforesaid judgment.

W.P.(C) No.25717 of 2017 Page 20 of 28

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31. The learned counsel for the Petitioner has relied upon the judgment of this Court M/s. Nilgiri Engineering Co-operative Society Ltd. vrs. State of Orissa and others reported in 2011 (Sup- II) OLR-683 stating that the facts of the aforesaid case are identical to the facts of the present case. Upon reading of the said judgment, this Court finds that the case reported in 2011 (Sup-II) OLR-683 is a case where there was no clause for escalation of price in the agreement. However, the minimum wage was enhanced by the State Government under the Minimum Wages Act and the contractor paid the enhanced wages to the labourers while executing the contractual work.

32. In the aforesaid reported judgment, a request was made to the Government to pay the enhanced labour component arising as a result of increase in the minimum wage notified by the Government. However, the Government of Odisha refused to pay the enhanced rate of the labour component. Such a decision of the Government was challenged before this Court while allowing the writ petition; this court quashed the decision of the Government refusing to pay escalated price on account of statutory increase in the minimum wage rate. It is further observed that there is no such observation or direction by this Court to pay the enhance rate in any W.P.(C) No.25717 of 2017 Page 21 of 28 // 22 // particular manner especially by following two circulars of the year 1986 and 1991 which have been relied upon by the present Petitioner. Moreover, the claim of the petitioner relying on aforesaid two circulars of the Govt. of Odisha is an afterthought and the same was not pleaded in its initial writ petition.

33. The intention of this Court was very clear while allowing the writ petition in the case of M/s. Nilgiri Engineering Co- operative Society Ltd. (supra). Reliance has been made upon a judgment of Hon'ble Supreme Court of India in the case of Tarapore and Co. vrs. State of Madhya Pradesh : reported in 1994 (I) ALR 341 wherein it has been held by the Hon'ble Supreme Court that payment of wages as per the rate fixed under the minimum wages act is a statutory obligation and although the terms of the contract was silent on payment of minimum wages, the contractor is statutorily bound to pay minimum wages fixed by the State Government to the workers.

34. Similar view has also been taken by this Court in Suryamani Nayak vrs. Orissa State Housing Board and others :

reported in A.I.R. 2005 (Ori) 26 and in OJC No.4744 of 1993 (Surendranath Kanungo vrs. State of Orissa). Thus, the claim of W.P.(C) No.25717 of 2017 Page 22 of 28 // 23 // the petitioner in the present case to get the actual differential rate of the labour component which has arisen due to increase in the minimum wages rate by the State Government Circular under the Minimum Wages Act is a genuine and legitimate one. Accordingly, this Court in the earlier writ petition has already issued a direction for payment of the escalated minimum wages to the Petitioner.

35. It is worthwhile to mention here that the Petitioner has unnecessarily troubled this court by filing successive writ petitions involving the self-same cause of action. The record reveals that the Petitioner is guilty of wasting Court's valuable time by approaching this Court in one form or the other on several occasions. After disposal of the first writ petition, in a very clear and unambiguous term, no further direction whatsoever is necessary in this case. Filing of such successive writ petition involving the self-same cause of action is nothing but an abuse of the process of this court.

36. As discussed hereinabove, the first writ petition filed by the Petitioner was disposed of with a clear direction. Further the Petitioner had filed successive writ petitions thereafter for the self- same relief. It is made clear here that when the relief sought for has already been granted by this Court in the earlier writ petition there W.P.(C) No.25717 of 2017 Page 23 of 28 // 24 // was no necessity of filing successive writ petitions seeking the very same relief with a twist in the language in the subsequent writ petitions. The basic relief remains the same for the entire series of writ petitions filed by the Petitioner. Such practices of filing successive writ petitions have been, time and again, deprecated by the Hon'ble Supreme Court as well as various High Courts. For example; in the case of Sarguja Transport Service Vrs. State Transport Appellate Tribunal, M.P., Gwalior and others, reported in 1987(1) SCC 5 and in the case of Ashok Kumar Vrs. Delhi Development Authority, reported in (1994) 6 SCC 97, Hon'ble Apex Court has held filing of successive petitions before the Court amounts to seer abuse of the process of the Court and is against the public policy. It is also a settled position of law that no one should be made to face the same kind of litigations twice over, because such a process would be contrary to the consideration of fair play and justice, as held by the Hon'ble Supreme Court in Daryao and others Vrs. The State of U.P. and others, reported in AIR 1961 SC 1457.

37. It is also clearly settled by various pronouncements that no litigant has a right to unlimited drought upon the court's time and W.P.(C) No.25717 of 2017 Page 24 of 28 // 25 // public money in order to get his affairs settled in the manner as he wishes. The process of the Court shall not be allowed to be abused in the manner it has been done by the Petitioner in the present case. In the case of Kishore Samrite Vrs. State of U.P. and others, reported in 2013 (2) SCC 398, in paragraph-13 of the said judgment, it has been observed by the Hon'ble Supreme Court that "another settled canon of administration of justice is that no litigant should be permitted to misuse the judicial process by filing frivolous petitions. No litigant has a right to unlimited drought upon the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be used as a licence to file misconceived and frivolous petitions. (Buddhi Kota Subbarao (Dr.) Vrs. K. Parasaran, (1996) 5 SCC 530)."

38. The Hon'ble Supreme Court in the matter of Direct Recruit Class II Engineering Officers' Association and others Vrs. State of Maharashtra and ors., reported in 1990 (2) SCC 715 expounded the principle laid down in the case of Forward Construction Co. & Ors. Etc. Etc. Vrs. Prabhat Mandal (Regd.) Andheri & Ors. Etc. Etc., reported in AIR 1986 SC 391 and it has been held as under: W.P.(C) No.25717 of 2017 Page 25 of 28

// 26 // "An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidential to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue, it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The High Court was therefore not right in holding that the earlier judgment would not operate as res-judicata as one of the ground taken in the present petition was conspicuous by its absence in the earlier petition."

39. In the case of M. Nagabhushana Vrs. State of Karnataka and others, reported in 2011 (3) SCC 408, it has been held by the Hon'ble Supreme Court as follows:

"23. Thus, the attempt to re-argue the case which has been finally decided by the Court of last resort is a clear abuse of process of the Court, regardless of the principles of Res Judicata, as has been held by this Court in K.K. Modi Vs. K.N. Modi and Ors. - (1998) 3 SCC

573. In paragraph 44 of the report, this principle has been very lucidly discussed by this Court and the relevant portions whereof are extracted below:

"One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the Court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata."

W.P.(C) No.25717 of 2017 Page 26 of 28

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40. Thus the principle of finality of litigation is based on a sound and firm principle of public policy in the absence of such a principle great oppression might result under the colour and pretence of law, in as much as, there will be no end to litigation. The doctrine of res judicata has been evolved to prevent such anarchy. Therefore, the conduct of the Petitioner in the present case is deprecated by this Court.

41. Coming back to the impugned order dated 21st September, 2017, it is seen that the authorities have requested the Petitioner to substantiate its claim by producing records, documents and detailed calculation. The Petitioner instead of complying with said request by the Executive Engineer, Rural Works Division, Nayagarh vide his letter dated 21st September, 2017 preferred to rush to the Court by filing the present writ petition.

42. Finally, in view of the earlier directions issued by this Court in favour of the Petitioner, we are not inclined to issue any further direction to the Opposite Parties. However, it is open to the parties to implement the directions issued earlier by this court and in the event of failure on the part of the Opp. Parties to carry out such directions issued by this court earlier, it is open to the Petitioner to avail remedies under other statutory provisions as available to him in accordance with law. It is needless to mention here that the W.P.(C) No.25717 of 2017 Page 27 of 28 // 28 // Petitioner shall cooperate with the Opp. Parties as requested by them to arrive at the correct figure payable to it under the earlier directions of this court.

43. In the aforesaid facts and circumstances, this court while declining to issue any further direction, disposes of the writ application with the observations made herein above. However, there shall be no order as to cost.

( A.K. Mohapatra ) Judge (Dr. S. Muralidhar) Chief Justice Jagabandhu W.P.(C) No.25717 of 2017 Page 28 of 28

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