Gauhati High Court
Kushal Konwar Baruah vs The State Of Assam And Ors on 12 March, 2015
Author: T. Vaiphei
Bench: T. Vaiphei
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Writ Petition (C) No. 6238/2010
Shri Kushal Konwar Baruah,
S/o Late Prafulla Baruah,
A resident of Vill. Mahaliapara,
P.O. Burhinagar, Dist. Darrang, Assam
.. Petitioner
- Versus -
1) State of Assam,
Represented by the Commissioner &
Secretary to the Govt. of Assam,
Education (Secondary), Assam,
Dispur, Guwahati-6.
2) Principal Secretary to the Govt. of Assam,
Finance Deptt., Dispur,
Guwahati-6.
3) Director of Secondary Education,
Assam, Kahilipara, Guwahati-19.
4) B.T.C., Kokrajhar,
Represented by the Secretary to the
Education Deptt., Kokrajhar.
5) Director, Education Deptt., BTC,
Kokrajhar.
6) Inspector of Schools, Udalguri
District Circle, BTC, Dist.- Udalguri.
W P (C) N o. 6238/ 10 P age 1 of 8
7) Treasury Officer, Dist.- Udalguri,
Udalguri.
...Respondents
BEFORE HON'BLE MR. JUSTICE T. VAIPHEI For the petitioners: Mr. R C Saikia, Mr. BN Pathak, Advocates.
For the respondents: Ms. RB Bora, SC, BTC.
Mr. N Sarma, SC, Elementary Education.
Mr. B Gogoi, SC, Finance.
Date of Hearing: 29-01-2015
Date of Judgment: 12-03-2015
JUDGMENT & ORDER (CAV)
In this writ petition, the petitioner is aggrieved by the refusal of the respondent authorities to pay his salary due to him from June, 1996 to 16th August, 2004 and is now seeking the intervention of this Court for payment of these back wages to him.
2. The case of the petitioner is that he was initially appointed as Music Teacher of Tangla Girls' High School on 17-4-1993 in the pay scale of ₹1375-3375/- for a period of three months against a sanctioned post. The post of Music Teacher was retained till 28-2- 2003 while his service was extended from time to time in the meantime, but payment of his salary was stopped from June, 1996. When his service was not regularised, he approached this Court in WP(C) No. 6129 of 2003 for regularization of his service for payment of his salaries from June, 1996 as well as his monthly salary. This W P (C) N o. 6238/ 10 P age 2 of 8 Court while issuing rule on 8-8-2003 passed an interim order directing the respondent authorities to pay his monthly salary to the petitioner on monthly basis. The interim order was ultimately complied with by the respondent authorities on the pain of facing punishment for contempt of this Court: the service of the petitioner was regularised and was allowed to draw his monthly salary with effect from 16-8-2004 as a Music Teacher vide the order dated 14-2- 2007.
3. It would appear that on 26-9-2007, the Deputy Secretary to the Government of Assam in the Education (Secondary) Department wrote to the Director of Education, BTC, Kokrajhar (respondent 5) informing him that as the petitioner had been working as Music Teacher of Tangla Girls' High School, Udalgiri had fallen under the jurisdiction of Inspector of Schools, Udalgiri Circle under BTC (respondent 6), the budget for the salaries of teachers stood transferred to the BTC authority, that the salary arrears of the petitioner prior to December, 2007 was to be released from the BTC budget and requested the BTC authority to release the salary arrears of the petitioner from the BTC budget and intimate the same to the Government of Assam. The respondent No. 6 thereafter issued the letter dated 11-10-2007 addressed to the Headmaster of the school to prepare the bills for the petitioner with effect from 16-8-2004. The bill in respect of the salary arrears of the petitioner so prepared by the Headmaster of the school for the period commencing from 16-8-2004 to 28-2-2006 and from 1-3-2006 to 30-11-2006 amounting to ₹1,84,571/- was submitted to the respondent No. 5 for payment. In the meantime, the writ petition filed by the petitioner i.e. WP(C) No. 6129/03 was dismissed on 1-4-2008 in default of prosecution. Though the petitioner has now been allowed to draw his monthly regular salary with effect from 1-12-2006, he has not been paid his salary even for the period from 16-8-2004 to 30-11-2006 notwithstanding the regularization of his service with effect from 16- 8-2004. At this stage, it may be noted that the Secretary to the W P (C) N o. 6238/ 10 P age 3 of 8 Government of Assam, Education Department had issued the order dated 16-8-2004 with reference to the order dated 6-6-2003 passed by this Court in WP(C) No. 6129/03 declaring that in view of the Memorandum of Understanding (MOU) signed between the Government of India and Government of Assam, the Government could not create any new post for payment of salary with retrospective effect. This order was never challenged by the petitioner during the pendency of WP(C) No. 6129 of 2003 by amending the said writ petition. In the meantime, the writ petition, which was restored to file on the application of the petitioner on 10-6-2008 was again dismissed by this Court on 2-3-2010 in default of prosecution.
4. After going the pleadings of the parties, the materials on record as well the record of WP(C) No. 6129/03, which was requisitioned by me, I do not propose to enter into the merit of the writ petition as I am of the view that this writ petition is barred by the principles of Order 9, Rule 9, Code of Civil Procedure and/or the principles of constructive res judicata. Order IX, Rule 9, CPC reads thus:
"Rule 9. Decree against plaintiff by default bars fresh suit.− (1) Where a suit wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."
W P (C) N o. 6238/ 10 P age 4 of 8 The question as to whether the principles of Order 9, Rule 9, CPC is applicable to writ proceedings under Article 226 of the Constitution came up for consideration before the Division Bench of the Rajasthan High Court in Ramsingh v. State of Rajasthan and ors., AIR 1969 Raj 41. Justice R.M. Lodha, as he then was, writing for the Court, after referring to the propositions of law laid down by the Apex Court in Sheodan Singh v. Daryo Kunwar, (1965) 2 SCR 547, held that even though the provisions of the Code of Civil Procedure may not apply with full rigour to writ proceedings, writ proceedings would nonetheless be governed by the principles analogous to those contained in the Code of Civil Procedure so far as they are not inconsistent with the Rules made by that Court on the subject. The following observations are instructive:
"14. Learned counsel for respondent No. 7 submits that there is no provision in the Rules of this Court either setting aside the ex parte proceedings in a writ matter or for making an application for restoration of the writ application dismissed in default and, therefore, the provisions contained in the Code of Civil Procedure, in this respect, can be suitably applied to the writ proceedings.
In MANU/RH/0071/1953 referred to above, it was observed by this Court that even though Section 141 CPC may not be specifically applicable, the Court has inherent powers on the analogy of Order 9 Rule 13 CPC to set aside its ex parte order! for the ends of justice and preventing the abuse of process. Learned counsel submits that on the same principle the present writ application is not maintainable in view of the fact that the earlier writ application on the same facts was dismissed in default in the presence of the opposite party and the application for restoration too was dismissed. He also submits that the principle contained in Order 9, Rule 9 CPC is indeed a salutary principle, inasmuch as there is no reason why a party should be harassed for the W P (C) N o. 6238/ 10 P age 5 of 8 same cause over and over again when the Court has once held that the petitioner has been guilty of laches.
It is further submitted by him that if the proposition submitted by the learned counsel for the petitioner is accepted, it would result not only in great harassment of the parties, but would also entail unnecessary waste of Court's time. We are of the view that the submission made by the learned counsel for the respondent No. 7 is not without force, and if the contention raised on behalf of the petitioner to the effect that the petitioner has a right to invoke the extraordinary jurisdiction of this Court under Art 226 of the Constitution successively unless the matter has been disposed of on merits, is driven to its logical conclusion, it would result in reductio ad absurdum.
The result of acceptance of such a proposition would mean that even though a writ application may have remained pending for a few years and then it has been dismissed in default or may have been disposed of for any other reason except on merits, the petitioner would have a right to move such an application on the same facts again and again till it is disposed of on merits. Looked at from another point of view, such a procedure would result in disregarding and circumventing the earlier orders of this Court. In these circumstances, we are of the opinion that the principle contained in Order 9, Rule 9, CPC can be suitably applied to writ proceedings. As has already been stated above, the earlier writ application in this case based on the same facts was dismissed in default in the presence of the opposite party and the application for its restoration was dismissed on merits. Thus, applying the principle contained in Order 9, Rule 9, CPC, the present writ application is not maintainable. Even otherwise we may state that, in the circumstances of the present case, we are not prepared to W P (C) N o. 6238/ 10 P age 6 of 8 exercise our inherent and extraordinary jurisdiction in favour of the petitioner on this second writ application. The preliminary objection raised by the learned counsel for respondent No, 7 has, therefore, force and must prevail."
5. I am in respectful agreement with the propositions of law laid down by the Rajasthan High Court on the question of applicability of the principles of Order 9, Rule 9 CPC to writ proceedings. In the instant case also, the writ petition was dismissed not once but twice even though the issue about payment of back wages from June, 1996 to August 7, 2003 was prayed for in WP(C) No. 6129/03. In other words, that was the cause of action for the first writ petition. He could have even incorporated the back wages for the period beyond August 7, 2003 as this cause of action had arisen during the pendency of the earlier writ petition, but he did not do so. The back wages were denied to the petitioner when his service was regularized on 9-10-2006 with effect from 16-8-2004. The State-respondents had earlier issued the order dated 16-8-2004 holding that in view of the memorandum of Understanding signed with the Central Government, the Government could not create any new post for payment of salary arrears with retrospective effect. The petitioner had never challenged the non- payment of the back wages in the earlier writ petition. In this view of the matter, this second writ petition based on the same cause of action viz. in so far as the relief concerning the said back wages is concerned is not maintainable.
6. That apart, this second writ petition claiming back wages from the subsequent period i.e. 1-3-2006 to 30-11-2006, if not barred on the principles of Order 9, Rule 9 CPC, can very well be barred by the principles of constructive res judicata. The matter in issue concerning the said back wages ought to have been made the ground of attack in the earlier writ petition by amending the same inasmuch as the said cause of action had already arisen before dismissal of the writ petition in default, which ought to have been incorporated in that writ petition by way of amendment. The plea of constructive res judicata is one W P (C) N o. 6238/ 10 P age 7 of 8 which might and ought to have been raised a ground of attack or defence in the former writ petition in order to operate as a bar in the exercise of jurisdiction to try and dispose of the matter subsequently. What Section 11 imposes is a bar on the Court not to try any suit or issue and decided in which the matter directly and substantially in issue has already been in issue and decided in a previous suit inter partes on certain conditions. I have gone through the record of WP(C) No. 6129/03, which was requisitioned by me from the Registry. Under the circumstances, this second writ petition is not maintainable being barred by constructive res judicata. As this writ petition is being dismissed on the ground of non-maintainability, I refrain from dealing with the other contentions raised by the learned counsel for the petitioner. True, no such plea was raised by the parties in this writ petition, but then when from the pleadings or the documents produced in the course of hearing, the Court has reason to believe that the suit or any issue is barred by constructive res judicata, the absence of specific plea to that effect should not stand in the way of applying the principles of constructive res judicata. It is by now a well-settled proposition of law without reference to cases that although Section 11 does not in terms apply to writ proceedings, the general the principles of res judicata apply to them.
7. For what has been stated in the foregoing, the writ petition is not maintainable, which is hereby dismissed but without costs.
JUDGE
Naba
W P (C) N o. 6238/ 10 P age 8 of 8