Central Administrative Tribunal - Delhi
Suraj Pal Singh vs Bharat Sanchar Nigam Limited on 28 March, 2025
1
C-I/item-32 OA-1908/2024
Central Administrative Tribunal
Principal Bench, New Delhi
O.A./1908/2024
M.A./1624/2024
Reserved on:04.03.2025
Pronounced on:28.03.2025
Hon'ble Dr. Chhabilendra Roul, Member (A)
Suraj Pal Singh, Aged 65 years
S/o Shri Bhola Singh
Post Mandir Ka Nagla
Agra Road, Padiyavali, Aligarh
Uttar Pradesh-202001 ...Applicant
(Through Ms. Nisha Priya Bhatia, Advocate)
VERSUS
Bharat Sanchar Nigam Limited, through
1. Chief General Manager NTR, BSNL
Kidwai Bhawan,
New Delhi-110001
2. Dy. General Manager, BSNL
O/o Network Operation Control Center (NOCC)
214, Eastern Court,
New Delhi-110001
3. Sr. Dy. Director General (Personnel)
BSNL, Sanchar Bhawan,
New Delhi-110001
And
4. D.E.T.,
Network Operation Control Center (NOCC)
BSNL Satellite Earth Station
Sikandrabad (UP)-203205
5. Union of India through
Ministry of Communication
Department of Telecommunication
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C-I/item-32 OA-1908/2024
Sanchar Bhawan,
New Delhi-110001 ...Respondents
(Through Ms. Leena Tuteja, Advocate)
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A):
1. The present Original Application has been filed by the applicant seeking direction to the respondents to refix his pay from January 2012 to February 2019 as per certain guidelines issued by the respondents on 1.01.2010 and 27.11.2018.
2. Factual Matrix 2.1 The applicant joined with the respondents- Department of Telecom i.e. respondent No. 5 as Telex Trunk Operator on 26.02.1982. Respondent No. 5 removed the applicant from service vide order dated 27.05.1986. Being aggrieved, the applicant filed a suitable petition before the Central Government Industrial Tribunal (CGIT). The CGIT vide order dated 01.03.1996 directed the respondents to take the applicant back in service with certain stipulations. The respondents challenged this award before the Hon'ble High Court of Allahabad. The said High Court vide order dated 10.04.2000 dismissed the respondents' 3 C-I/item-32 OA-1908/2024 challenge to CGIT award. Further the respondents challenged the High Court of Allahabad's order before the Hon'ble Supreme Court, and the Hon'ble Supreme Court vide order dated 06.11.2001 dismissed the respondents' petition. In the meanwhile, BSNL has come in to existence and the erstwhile employees of the DOT were also absorbed in BSNL. In pursuance of the Apex Court order dated 06.11.2001, the BSNL, respondent No. 1 passed an order dated 22.05.2002 reinstating the applicant as daily rated Telex Trunk Operator. The respondent No. 1 vide order dated 13.07.2002 again terminated the services of the applicant. Being aggrieved, the applicant has filed petition No. 4256/2002 before the Hon'ble High Court of Delhi which was further transferred to the Central Administrative Tribunal and registered as TA No. 206/2009. This Tribunal vide order dated 11.07.2011 passed the following order:-
"18. In view of the above reasons and discussions, I find that the termination order is not legally maintainable and as such the termination order dated 12.07.2002 is quashed and set aside, in the result, the Respondent BSNL directed to reinstate the Applicant forthwith, and pay him full back wages. On his rejoining of the post, the Respondents would consider him to grant temporary status in the appropriate vacant position, and thereafter regularize, as per the scheme of 1989 within a period of 9 weeks from the date of receipt of a certified copy of this order."4
C-I/item-32 OA-1908/2024 2.2 The respondents challenged the order dated
11.07.2011 in T.A. No.206/2009 before the Hon'ble High Court in W.P(C) No. 25/2012. The Hon'ble High Court vide interim order dated 04.01.2012 passed the following order:-
"The respondent will be permitted to work at the same post and scale as mentioned in the letter dated 18.02.2002. Arrears will be deposited by the petitioner in this Court within three weeks.
Learned counsel for the petitioner will obtain instructions whether respondent can be accommodated and permitted to continue in service in terms of the order dated 18.02.2002 Letter of appointment permitting the respondent to work will be issued within a period of 15 days. These directions are subject to the final outcome of the writ petition/stay application.
The matter will be listed before the Roster Bench on 21st March, 2012:"
2.3 In pursuance to the order passed by the Hon'ble High Court of Delhi, the applicant rejoined the services on 27.01.2012. The Delhi High Court vide order dated 05.02.2013 remanded the T.A./206/2009 back to the Tribunal passing the following order :-
"2. The reason for the remand is that the Tribunal has not held the two posts to be similar or interchangeable.
3. Parties shall appear before the Registrar of the Central Administrative Tribunal on February 28, 2013 who shall revive TA No.206/2009 and list the same for adjudication before the Bench of the Tribunal.
4. We find that pursuant to an interim order dated July 04, 2012 certain amounts have been deposited 5 C-I/item-32 OA-1908/2024 by the writ petitioner in this Court which we direct to be returned by drawing out a cheque in the name of the first writ petitioner Interest accrued on the deposit would also be refunded.
5. We further find that on account of a partial stay of the impugned decision the respondent has been taken back in service and thus we direct that till IA No. 206/2009 is decided by the Tribunal the respondent shall continue to work with the writ petitioner.
6. No costs"
2.4 The remanded TA No. 206/2009 was decided by this Tribunal on 2.04.2014 and the operative part of the order reads as follows:
"18. In the facts and circumstances of the case, the T.A. is disposed of with a direction to respondent Nos. 2 to 5-Bharat Sanchar Nigam Limited either to continue utilizing the services of the applicant as Telex Trunk Operator/ Telegraphist / Telecom Operating Assistants (Telegraphy) or in the capacity in which he is presently working till he is considered for regularization against the available vacancy in accordance with the rules. In alternative, if the said respondents are of the view that there is no scope of utilizing the services of the applicant in any of the aforementioned capacities and he would be a continuous burden on public exchequer without any utilization, they would be at liberty to bring an end to his services by giving him lump sum compensation of Rs. 5.50 lacs (Rupees Five Lacs and Fifty Thousand only). No costs."
2.5 A perusal of the above order shows that the issue whether the applicant was Telex Trunk Operator/ Telegraphist/ Telecom Operating Assistant has not been decided. It left the question open to the 6 C-I/item-32 OA-1908/2024 respondents and directed them to utilise the services of the applicant in which ever manner they want and if there was no scope of giving any work, the Tribunal ordered a one time compensastion of Rs 5.5 lacs to the applicant.
2.6 The applicant filed RA No. 211/2014. The Tribunal vide order dated 24.08.2018 disposed of the said RA in the following manner:
"4. I am of the view that the case of the applicant should be considered in a sympathetic manner. Accordingly, this Review Application is disposed of with a direction to the applicant to make a representation to the respondents within two weeks from the date of receipt of a certified copy of this order and on receipt of such a representation, the respondents shall decide the same by passing a reasoned and speaking order, in accordance with law, within a period of three weeks therefrom. However, the applicant is at liberty to avail his remedies, in accordance with law, if he is still aggrieved. No costs."
2.7 After the disposal of the RA in above manner, the respondent challenged the order of the Tribunal in TA No. 206/2009 in W.P.(C) No. 4990/2014. The Hon'ble Delhi High Court vide order dated 17.01.2023 passed the following order:-
"3. Today, we have been informed by the learned counsel for the petitioners that the services of the respondent no.1 were continued till February 02, 2019 when he attained the age of superannuation. He also states that the finding of the Tribunal that a Telex Trunk Operator can be re-designated as a Telecom Operating Assistant 7 C-I/item-32 OA-1908/2024 and the said posts are interchangeable, is untenable.
4. Suffice to state, in view of the fact that, the engagement of the respondent no 1 continued till the age of superannuation, we say nothing on this finding of the Tribunal.
5. As nothing survives in the Writ Petition, the same is disposed of"
2.8 Meanwhile, the applicant has retired w.e.f.
03.02.2019. The applicant in pursuance with the Tribunal's order in RA No. 211/2014 dated 24.08.2018 had also filed a representation dated 05.10.2018 which was disposed of by a speaking order dated 18.09.2019 (Page 140 to 144 of the reply). Now the applicant has come in the present OA seeking the following reliefs:-
"(A) Direct the Respondents to fix the Applicant's salary for the period January 2012 to February, 2019 - in accordance with their orders F. No. 269-11/2009-
Pers.IV/LE dtd. 01.01.2010 and F. No.11-3/2016-LE dtd. 27.11.2018.
(B) direct the Respondents to pay to the Applicant arrears of salary for the period January 2012 to February, 2019 amounting to Rs. 9,56,343/-(Nine Lakhs Fifty Six Thousand Three Hundred and Forty Three). (C) direct the Respondents to pay interest @ 18% p.a. on amount payable in arrears of salary for the period January 2012 to February, 2019.
(D) direct the Respondents to pay an appropriate amount in penalty until the Respondents actually pay him arrears of salary for the period January 2012 to February, 2019.
(E) pass such other order(s) as it may deem fit and proper."
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C-I/item-32 OA-1908/2024
3. Notices were issued to the respondents and they have filed their counter reply. Applicant chose not to file rejoinder.
4. Submission by the learned counsel for the applicant:
4.1 Learned counsel for the applicant referring to the series of litigations which has already been quoted hereinabove, submits that the applicant has suffered on account of no finality attached to his grievances. He was agitating for regularization, proper pay fixation against appropriate post in BSNL, however, he has not got the relief as yet. The applicant's service came to an end attaining the age of 60 years on 03.02.2019. The learned counsel for the applicant submits that the applicant is seeking revision of the emoluments of pay w.e.f. 27.01.2012, as per his representation placed as Annexure A-3. In support of this claim, learned counsel for applicant relies on the letter dated 01.01.2010 issued by the BSNL, Annexure A-1.
Particularly she refers to para 1(b) which reads as under:-
"1b. DOT's Letter No. 269-11/98-STN-11 dated 15.9.98 in which it has been specified that all the casual labourers engaged for work of regular nature may be paid wages at the rates of 1/30th of pay at 9 C-I/item-32 OA-1908/2024 the minimum of the relevant pay scale plus Dearness Allowance for work of 8 hours."
4.2 In view of this, learned counsel for applicant submits that the respondents should have fixed the wage for every day at 1/30th of the pay of the minimum of the relevant pay scale + DA for working for 8 hours. However, the respondents have erroneously considered the applicant as a casual labourer (Mazdoor) applying clause 3 under para 2 of letter dated 01.01.2010. The learned counsel for the applicant emphasises that the applicant was not a casual labourer (Mazdoor) but he was a daily rated Trunk Operator/Telex Operating Assistant. This categorization of the applicant by the respondents has created the anomaly in fixing of his pay. The applicant had given a statement detailing the amount which would be payable to the applicant as a daily rated Trunk Operator/Telex Operating Assistant and the amount already paid by the respondents. This calculation is given at page 41 to 49 of the OA. The last column of the said statement gives the difference of amount to be paid to the applicant by the respondents. Learned counsel for applicant submits that the applicant was never a daily wage Mazdoor but a daily rated Trunk Operator/Telex Operating Assistant 10 C-I/item-32 OA-1908/2024 which is distinctly different from a casual labourer (Mazdoor). To prove this point, she gives the following reasons to state that the applicant was daily rated Trunk Operator/Telex Operating Assistant:
i. All the correspondence addressed by the respondents to the applicant including his disengagement from the services refers to the applicant as Daily Trunk Operator/Telex Operating Assistant. Specifically she refers to order dated 18.09.2019 vide which the respondents have passed the speaking order in respect of the representation given by the applicant. In para (E) it has been mentioned by the respondents themselves that "Pursuant to the confirmation of the award by Hon'ble Supreme Court, the respondent was reinstated as deemed daily rated Telex-
Trunk Operator' on 21.02.2002 and paid back wages from 1986 to 2002".
ii. In view of this conclusive evidence that the respondents have treated the applicant as daily rated Trunk Operator/Telex Operating Assistant, which has been affirmed by the 11 C-I/item-32 OA-1908/2024 CGIT order dated 01.03.1996, the respondents should have fixed his wages as per paragraph 1(E) of order dated 01.01.2010.
5. Submission by learned counsel for the respondents :
5.1 Per contra, learned counsel for respondents vehemently opposes the present OA. She submits that the applicant has been given wages as per the Minimum Wages Act 1948 and as and when he has been reengaged the corresponding minimum wages as notified by the relevant government has been given to the applicant. She challenges the maintainability of the present OA on the grounds of limitation and applicability of principle of res-judicata.
5.2 The learned counsel for respondents refers to the order dated 02.04.2014 in TA No. 206/2009 wherein the issue was reinstatement of the applicant at certain position with certain pay scale. Once this TA was decided finally, the applicant has never challenged the wages paid thereafter in pursuance with the said order of the Tribunal. In this regard, she draws attention of the Tribunal to interim order dated 12 C-I/item-32 OA-1908/2024 04.01.2012. He referred to the operative paragraph of this order which has already been reproduced under paragraph 2.2 above.
5.3 The learned counsel for respondents further refers to letter dated 18.02.2002, Page 18 of the reply which is reproduced as under:-
"With reference to the above, I have been directed to Intimate that ADG (Pers-IV) BSNL Hqrs vide their letter No. 271-19/2000/STN-II/Pers-IV) dated 14-02-2002 has advised that applicant may be reinstated Immediately to comply with the directions of the Industrial Tribunal. He may be treated as deemed daily rated Telex/Trunk operator as per the award of the Industrial Tribunal.
It is further mentioned that since there exist no post of Telex Trunk - operator in NTR the Department cannot regularise him in the said post. The Industrial Tribunal in their award made it clear, it will be open to the management to regularise or to deal with him otherwise in accordance with the rules: Hence necessary action may be taken accordingly (copy enclosed).
It is therefore, requested that action regarding Implementation of court orders dated 06-11-2001 may be taken expeditiously to avoid any contempt proceeding."
5.4 The learned counsel for respondents submits that the applicant has been reinstated as daily rated Trunk Operator/Telex Operating Assistant. In view of this, he is entitled only for the minimum wages as notified for the relevant government for such kind of employees. In pursuance of the interim order by the Delhi High Court, the applicant has been given 13 C-I/item-32 OA-1908/2024 particular wages as per the methodology adopted by the respondents. She further submits that the applicant agitated for getting appropriate wage rate or scale in T.A. No.206/2009. The T.A. was finalized in 2014 and the RA was decided on 24.08.2018. Since then the applicant has not agitated his grievance. She submits that after the RA was decided, the applicant filed a CM No. 2549/2018 in W.P. 4990/2014. The prayer clause of the said CM reads as follows:-
"a) pay the Applicant Respondent minimum wage according to the BSNL policy vide letter No. 269-
11/2009/Pers-IV/LE dated 1st January, 2010, and to pay arrears from the date of joining with effect from 27 1 2012 to 31 12.2017 as calculated in ANNEXURE A-2.
b) pass such other or further order/s as Your Lordships may deem fit and proper".
5.5 Learned counsel for respondents submits that the WP No. 4990/2014 was finally decided on 17.01.2023. Hence the matter pertaining to the prayer in the above CM was finally adjudicated. Hence the applicant is again prohibited for raising the same issue in fresh litigation, as per the Principle of res-judicata. The Tribunal in RA No. 211/2014, order dated 24.08.2018 directed the applicant to file a representation, the same representation was considered by the respondents and finally decided on 14 C-I/item-32 OA-1908/2024 18.09.2019. This order has not been challenged by the applicant. In his representation, the applicant has raised the method of calculation of daily rate of wages of the applicant and he has claimed that the respondents have wrongly calculated his daily wage rate. Now, after the respondents have decided his representation the same has not been challenged. She refers to page 142 to 144 of the OA, which are reproduced below:
"H. Thereafter, the T.A. No 206/2009 reached to the Hon'ble CAT and the Hon'ble CAT allowed the TA and disposed of vide order dated 02.04 2014 by giving two options to BSNL either to continue the services of Shn Suraj Pal Singh or pay lump sum compensation of Rs 5.50 lacs The operating portion may be read as below:-
"In the facts and circumstances of the case the T.A. is disposed off with a direction to respondent Nos. 2 to 5-Bharat Sanchar Nigam Limited either to continue utilizing the services of the applicant as Telex Trunk Operator/Telegraphist / Telecom Operating Assistants (Telegraphy) or in the capacity in which he is presently working till he is considered for regularization against the available vacancy in accordance with the rules In alternative, if the said respondent are of the view that there is no scope of utilizing the services of the applicant. any of the aforementioned capacities and he would be continuous burden on public exchequer without any utilization they would be at liberty to bring an end to his services by giving him lump sum compensation of Rs. 5.50 Lacs (Rupees Five Lacs and Fifty Thousand only). No costs."
The CAT Order dated 02.04.2014 in TA No.206/2009 has been challenged by BSNL in Hon'ble High Court for adjudication. I. The Hon'ble High Court of Delhi vide order dated 29/03/2016 in WP (C) 4990/2014, CM No:
9973/2014 stated that:15
C-I/item-32 OA-1908/2024 "Learned counsel for the petitioner will file an affidavit enclosing therewith the monthly payment made to the respondent No. 1 and also indicate the amount payable to casual workers. The petitioner will also indicate whether the amount being paid to the respondent meets the mandate of the Minimum Wages Act."
J. Further, the High Court of Delhi vide order dated 13.05.2016 in WP(C) 4990/2014, CM No. 9973/2014 stated that:
"The petitioner shall respond to this affidavit within three weeks from today In case, the petitioners find that the respondent has not been paid correct wages as per law, steps will be taken on or before the next date of hearing and the court shall be informed. The matter will also be placed before the AGM (Legal) and Officer In charge who ensure that there is compliance with the Minimum Wages Act"
K. The case was examined with reference to Hon'ble High Court order dated 29 03.2016, 13.05.2016, and found that Shri Suraj Pal Singh was temporarily permitted to work, since there is no post of Daily Rated Telex or Trunk Operator so work of Group D was being taken from him and he had to be paid the wages of casual laborer engaged for work of intermittent/seasonal nature as per Minimum Wages notified from time to time by Ministry of Labour and Employment, Government of India. Further, it is stated that at no point of time the compliance of Minimum Wages Act was failed Accordingly arrear from Jan-2012 to May-2016 for Rs. 64042/- (Rs Sixty Four Thousand & Forty Two only) was prepared and paid to Sh. Suraj Pal Singh through Hon'ble court. Monthly wages according to direction given is being paid to him from June-2016 onward. L. On 06/05/2017, a Committee was also constituted by CGM, NTR, New Delhi to decide the case of wages of Sh. Suraj Pal Singh The committee observed that Shri Suraj Pal Singh was performing the duty of intermittent/seasonal nature "to assist the technical staff in day to day DSPE HUB maintenance including cleaning, upkeep and maintenance of DSPT Equipment, battery and power plant work".
M. As per BSNL Corporate Office letter No 269- 11/2009-Pers IV/LE dated 01.01.2010, the wages are being paid to engaged casual labourers for regular nature of work is 1/30 of the minimum of pay scale in CDA 2.0(2) and for intermittent/seasonal nature the casual labourers engaged are to be paid at rates of 16 C-I/item-32 OA-1908/2024 Minimum Wages notified from time to time by the Ministry of Labour and employment, GOI 2.0(3). In the instant matter since the work under taken from Shri Suraj Pal Singh was of intermittent nature and accordingly O/o DGM(Sat.), Sikandarabad paid minimum wages to Shri Suraj Pal Singh as per notifications issued by Ministry of Labour and Employment, GOI from time to time Shri Suraj Pal Singh is now disengaged from work on attaining the age of 60 years as on 03.02.2019. The type of engagement of Shri Suraj Pal Singh, pursuant to the latest applicable court orders in this regard, entails that the applicant be paid wages as per the applicable GOI guidelines Accordingly, Shri Suraj Pal Singh was paid as per para No.2.0(3) till his disengagement and not found to be entitled for any relief till the final verdict of Hon'ble High Court. This is issued in compliance of Hon'ble CAT PB, New Delhi order dated 24/08/2018 in R.A No. 211/2014 in TA No. 206/2009."
5.6 Referring to the aforementioned paragraphs in letter dated 18.09.2019, the learned counsel for respondents submits that there was a categorical order regarding applicability of the methodology of calculating of daily wages of the applicant as per para No. 2.3 of letter dated 01.01.2010. This has not been challenged by the applicant as yet. She refers to the additional affidavit filed before the Hon'ble Delhi High Court in W.P.(C) No. 4990/2014 which contains the methodology of calculation of daily wage rates of the applicant from time to time. This was not rebutted by the applicant before the Delhi High Court. 17
C-I/item-32 OA-1908/2024
6. In rejoinder, with regard to the limitation, learned counsel for applicant submits that the applicant is continuously agitating regarding the back wages and this is continuing cause of grievance and hence Principle of limitation will not be attracted in the instant case. As regards to application of Principle of res-judicata, she states that none of these previous litigation have given finality to the grievance of the applicant regarding the way his wage rate will be calculated. She submits that when the respondents disposed of the representation dated 05.10.2018 by passing detailed order 18.09.2019 they have specifically mentioned "Accordingly, Shri Suraj Pal Singh was paid as per para No.2.0(3) till his disengagement and not found to be entitled for any relief till the final verdict of Hon'ble High Court". Hence there was no finality to the method of calculating the wage rate for the applicant. The respondents have never called the applicant as daily wage Mazdoor except in the speaking order dated 18.09.2019.
7. Analysis 7.1 The learned counsel for the respondents has raised the issue of maintainability of the present 18 C-I/item-32 OA-1908/2024 Original Application based on the principle of constructive res judicata. In his submission in Paragraph 5.2 above, she has said that TA no. 206/2009 was finally decided on 2.04.2014 and the RA was decided on 24.08.2018. The applicant filed CM No.25491/2018 in WP(C) No.4990/2014 with the prayer for fixation of his Pay in particular manner as given by Annexure-A2 to the CM. The above WP was decided on 17.01.2023. Hence, the request regarding the above prayer regarding pay fixation has seen its finality. Accordingly, the applicant is prohibited again to raise the issue of pay fixation based on the principle of res judicata.
Secondly, this Tribunal in RA no. 211/2014 directed the applicant to file a representation and the applicant filed a representation dated 5.10.2018 which was decided by the respondents on 18.09.2019. The applicant has not challenged the said decision. In the said letter, the respondents in Paragraph 4 have stated:
"4. That after making due calculations as per para 3 of the instant affidavit, the arrears were calculated for the period of 27.01.2012 to 31.05.2016 which amounted to Rs.64042/-. The cheque of the aforesaid amount was duly handed over by the petitioner to the respondent 19 C-I/item-32 OA-1908/2024 before this Hon'ble Court on 11-07-2016. A chart detailing out the entire calculations to arrive at the amount of Rs.64042/- as arrears is marked as ANNEXURE."
7.2 Furthermore, the learned counsel for the respondent has raised the issue of maintainability of the present OA on grounds of limitation. She has referred to order dated 2.04.2014 in TA no.206/2009, where the issue of reinstatement of the applicant at certain position with certain pay scale was decided. The operative paragraph of order dated 4.01.2012 states that the respondents will allow the applicant to work at the same post and scale as mentioned in the letter dated 18.02.2002. The respondents reinstated the applicant as per this directive and paid the applicable certain rates of wages. The applicant has never challenged this decision. He has accepted the wages since then and never challenged the particular rate of wages paid. Hence, the cause of action arose on 27.01.2012 when the applicant joined back with the respondents. The applicant has not agitated about the wages paid from 2012 till his retirement.
8. In view of the above, the following issues are framed for adjudication of the case:
20
C-I/item-32 OA-1908/2024 i) Whether the present OA is barred by limitation
and it is liable to be dismissed on account of delay and laches?
(ii) Whether the present OA is not maintainable on account of principle of res judicata including constructive res judicata?
8.1 Question of Limitation Section 21 of the Administrative Tribunals Act, 1985 states :
"21. limitation- (1) A Tribunal shall not admit an application--
a) in case where a final order such as mentioned in clause (a) of sub-clause (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as mentioned in clause (b) of sub-clause (2) of section 20 has been made and period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where -
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in 21 C-I/item-32 OA-1908/2024 clause (a), or, as the case may be, clause (b), of sub- section (1) or within a period of six months from the said date, whichever period expires later. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period."
8.2 The present applicant's cause of action arose immediately after 27.01.2012, when he was reinstated by the respondents in pursuance to the order dated 4.01.2012 in TA no. 206/2009. The applicant was paid certain wages as per the communication /circular dated 18.02.2002. The applicant had not specifically agitated against such payment of wages since then. He claims that he had represented to the respondents on 13.04.2012, however, there is no evidence of receipt of any such representation by the respondents nor the applicant has attached any copy of the said representation. The first time the applicant raised the issue about pay scales is in CM No.9973/2014 in WP(C) no. 4990/2014. The applicant's claim is that there is no finality to his claim in the CM and hence, he is within his rights to raise the issue of wage fixation as it is matter of continuing wrong. 22
C-I/item-32 OA-1908/2024 8.3 The issue regarding limitation and continuing
wrong has been succinctly decided by the Apex Court in Union of India and Others vs. Tarsem Singh, Civil Appeal No.5151-5152 of 2008, decided on 13.08.2008. In this context it would be pertinent to refer to the concluding part of Paragraph (7) and Paragraph (8) of the judgment of the Apex Court which is reproduced below:
"7. ..........Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."23
C-I/item-32 OA-1908/2024 8.4 The claim of the respondents is that as the CM
No. 9973/2014 in WP(C) 4990/2014 claimed the methodology of calculation and the respondents complied with the direction of the High Court, the matter was finally settled. It is the claim of the applicant that the grievance of the applicant regarding wage fixation was not decided by the aforementioned order of the High Court. Hence, the matter falls under the category of continuing wrong.
8.5 The fact that the refixation of wages in respect of the present applicant would not affect any third party.
Accordingly, applying the ratio of the judgement of the Apex Court in Tarsem Singh (supra), this Tribunal accepts that the matter qualifies as a continuing wrong and hence, the issue of limitation is not attracted in the case of the present OA.
8.6 Issue of Principle of res judicta The learned counsel for the respondent has raised the issue of maintainability of the present Original Application on the basis of applicability of principle of res judicata.24
C-I/item-32 OA-1908/2024 1. It would be in order to delve into the specifics
contained in Order II Rule 2 of CPC, which reads as follows:
"2. Suit to include the whole claim.-
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs;
but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.-For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
The Apex Court in CA No. 372-373 of 2025 titled No. 372-373 of 2025 titled Cuddalore Powergen Corporation Ltd Vs M/s Chemplast Cuddalore Vinyls Limited and Anr vide order dated 15.01.2025 has succinctly analysed the detailed scope and interpretation of Order II Rule 2 of CPC in the following manner:
"35. Order II Rule 2 CPC reads as under:
"2. Suit to include the whole claim.-
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff 25 C-I/item-32 OA-1908/2024 may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.-For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
36. The object of both the Rules 1 and 2 of Order II is to prevent the multiplicity of suits. Order II Rule 2 is founded on the principle that a person should not be vexed twice for one and the same cause. It is a rule which is directed against two evils i.e., the splitting up of claims and the splitting up of remedies. What Order II Rule 2 requires is the inclusion of the whole claim arising in respect of one and the same cause of action, in one suit. However, this must not be misunderstood to mean that every suit shall include every claim or every cause of action which the plaintiff may have against the defendant. Therefore, where the causes of action are different in the two suits, Order II Rule 2 would have no application.
37. On a more careful perusal of the provision, it can be seen that Order II Rule 2(1) reads as -
"every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action", whereas the words used in Order II Rule 2(3) are "the same cause of action". Despite being so, the words "the cause of action" used in Order II Rule 2(1) must be read to mean "the particular cause of action". Only on such a reading one can arrive at the inference that where there are different causes of action, Order II Rule 2 will not apply; and where the 26 C-I/item-32 OA-1908/2024 causes of action are the same, the bar imposed by Order II Rule 2 may apply.
38. Order II Rule 2(1) requires every suit to include the whole of the claim to which the plaintiff is entitled to in respect of a particular cause of action. However, the plaintiff has an option to relinquish any part of his claim for the purpose of bringing the suit within the jurisdiction of any court. Order II Rule 2(2) contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, then he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order II Rule 2(2) does not contemplate the omission or relinquishment of any portion of the plaintiff's claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished. Such leave of the court is contemplated by Order II Rule 2(3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief(s) earlier omitted except in a situation where leave of the court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order II Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order II Rule 2 contemplate two different situations, namely, where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situation where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit, provided that at the time of omission to claim the particular relief, he had obtained the leave of the court in the first suit.
39. In Words and Phrases (4th Edn.), the meaning attributed to the phrase "cause of action" in common legal parlance was stated to be the existence of those facts which give a party the right to judicial interference on his behalf. In Stroud's Judicial Dictionary, a cause of action is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain a judgment. Black's Law Dictionary states that 27 C-I/item-32 OA-1908/2024 cause of action is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person. Halsbury's Laws of England (4th Edn.) defined cause of action as follows:
"Cause of action' has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action."
The Apex Court in the aforementioned Cuddalore Powergen Corporation Ltd (supra) case concluded in paragraph 86 in following manner:
"86. It is established law that the principles governing the applicability of the provisions of Order II Rule 2 do not operate as a bar but when the subsequent suit is based on a cause of action different from that on which the first suit was based and that the identity of the causes of action in both the suits must be the material consideration before the court which decide the applicability of this provision to a second suit filed by the plaintiff....."
In other words, the crucial test for applicability of Order II Rule 2 is whether the "cause of action" in both the Applications is the same. The High Court of Madras 28 C-I/item-32 OA-1908/2024 in M. Rajendran Vs Government of India and ors. in W.A no. 3161 of 2019 while discussing the Halsburry Laws of England held in Praragraph 18(iv) that:
"18.(iv) It is submitted that the impugned order warrants the appellant to file two writ petitions for the same set of facts, against the same respondents which if permitted would result in total waste of time for this Hon'ble Court and parties, unnecessary avoidable expenditure etc., which is not at all conducive to the public policy of speedy justice at minimum cost."
Further the said judgment in Paragraph 18 (viii) held that :
"18.(viii) Further, a reading of Art.226 of the Constitution of India would show and especially the phrase "or any of them" obtaining therein enables a person to seek any number of reliefs under Art.226, i.e., in a writ petition. Therefore, from the above, it is clear that more than one relief can be sought under the same writ petition."
In other words, multiple reliefs from the same cause of action are permissible in a single suit. 8.7 Against the aforesaid judicial pronouncements, it is worthwhile to consider the facts and circumstances of the present Original Application. 8.8 In the instant case, the issue of appropriate wage has been an issue in various litigations raised by the applicant from filing the TA 206 in 2009 and also in WP(C) no. 4990/2014. The Hon'ble High Court vide 29 C-I/item-32 OA-1908/2024 order dated 29.03.2016 in said WPC and CM No. 9973 ordered that "learned counsel for the petitioner (respondents in the present OA) will file an affidavit enclosing herewith the monthly payment made to Respondent No.1 (applicant in the present OA) and also indicate the amount payable to casual workers. The petitioner will also indicate whether the amount being paid to the respondent meets the mandate of the Minimum Wages Act." (emphasis and parenthesis added).
The respondents decided the matter and communicated to the applicant vide their letter dated 18.9.2019. The applicant has not challenged the said order. The WPC 4490/2014 was finally decided on 17.01.2023. The Hon'ble High Court concluded the judgment stating that:
"5. As nothing survives in the writ petition , the same is disposed of".
8.9 In view the above, the issue regarding payment of appropriate wages raised in the CM No.9973 of 2016 and the WP(C) in which this CM was raised was finally decided on 17.01.2023, the judicial pronouncement on this issue has attained finality. Both the parties in the 30 C-I/item-32 OA-1908/2024 CWP and the present OA are the same and the issue raised is the same. Hence, three essential conditions for applicability of principle of res judicata namely, (a) in both the petitions, the issue should be same; (b) the parties in both suits should be same; and (c) the issue should be finally adjudicated, are satisfied in the instant case. Accordingly the present OA is not maintainable on account of applicability of the principle of res judicata.
8.10 In addition to the above, this Tribunal finds that the applicant in the instant case has not approached this Tribunal with clean hands. The present OA has been filed under Section 19 of the Administrative Tribunal Act, 1985, which states:
"19. Applications to Tribunals (1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance."
However, there is no specific order by the respondents against which the applicant has any grievance. Ordinarily, the applicant should have impugned any such order, which has been issued by the respondents themselves while deciding any service matter pertaining to the applicant or in the alternative in 31 C-I/item-32 OA-1908/2024 response to any representation submitted by the applicant. Here, none of these conditions are satisfied. The applicant has conveniently concealed the fact in pursuance to order dated 24.08.2018 in RA no. 211 of 2014 in TA no. 206/2009, the applicant submitted a detailed representation to the respondents regarding refixation of the wages. The respondents have passed a detailed speaking order dated 18.9.2019. The applicant has neither mentioned about the said speaking order nor challenged the same. Moreover, the applicant is claiming refixation of his wages from January 2012 to February 2019, but he has not attached or impugned any single payment order or wage bill issued by the respondents.
10. Conclusion 10.1 In view of the above analysis, this Tribunal holds that :
(i) the present OA is not barred by limitation an account of the fact that determination of wages is a continuing wrong.
(ii) However, the present OA is not maintainable on account of applicability of principle of res judicata because the issue in the present case i.e. wage fixation 32 C-I/item-32 OA-1908/2024 in respect of the present applicant was one of the issues in CM No.9973/2014 in WP(C) No 4990/2014, which has been decided on 17.01.2023 and the said judgement has attained finality.
(iii) Accordingly, the OA is dismissed. No order as to costs.
(Dr. Chhabilendra Roul) Member (A) /dkm/