Central Administrative Tribunal - Jodhpur
Shashi Kant Goswami vs M/O Finance on 15 March, 2019
1
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
...
Original Application No.290/00067/2017
With Misc. Application No.290/00051/2017
Reserved on : 07.03.2019
Pronounced on : 15.03.2019
CORAM:
HON'BLE MRS. HINA P.SHAH, MEMBER (J)
HON'BLE MS. ARCHANA NIGAM, MEMBER (A)
Shashi Kant Goswami s/o Shri Chandra Kant Goswami,
aged about 63 years, R/o 5E, 36, Jai Narayan Vyas Colony,
Bikaner -334001.
...Applicant
(By Advocate: Shri T.C.Gupta)
Versus
1. Union of India through the Finance Secretary, Ministry of
Finance, Department of Revenue, Government of India,
North Block, New Delhi- 110 001.
2. Pr. Commissioner of Income Tax, Aayakar Bhawan, Rani
Bazar, Bikaner- 334001.
3. Zonal Accounts Officer, CBDT, B-Road, Paota, Jodhpur-
342010.
...Respondents
(By Advocate: Shri Sunil Bhandari)
ORDER
Per Mrs. Hina P.Shah, M(J) In this OA filed u/s 19 of the Administrative Tribunals Act, 1985, the applicant prays for the following reliefs:-
a) In view of the facts enumerated above, it is most respectfully prayed that the respondents may be directed 2 to grant pay scale of 5500-9000 of Junior Translators, notionally from 27.4.2001 the date of his joining as Junior Translator and actually from 1.2.2003 at par with similarly situation applicants, with interest @ 12% for the period of delay.
b) Any other appropriate writ, order or direction, which may be considered just and proper in the facts and circumstances of the case may be issued in favour of the applicant.
2. It is the case of the applicant that he was appointed as LDC on 12.9.1977. Subsequently, he was promoted as Junior Hindi Translator w.e.f. 27.4.2001. He retired on superannuation on 31.8.2013. The applicant avers that the CAT-Principal Bench vide order dated 18.9.2009 in OA No.2600/2009 relying on CAT order dated 17.10.2008 in OA No. 402/2006 has accepted grant of pay scale of Rs. 5500- 9000 to junior Translators, notionally from 1.1.1996 and actually from 1.2.2003 at par with similarly situated applicants. He further avers that the CAT-Principal Bench in order dated 22.11.2013 passed in OA No. 1777/2012 has reiterated the above benefit. Therefore, the applicant is also entitled for similar benefits being similarly situated person. For this purpose, he has also filed representation dated 27.7.2012, which is still pending. Therefore, being aggrieved by the action of respondents not granting similar benefits to the similarly situated employees, he has approached this Tribunal claiming the aforesaid reliefs. 3
3. The applicant has also filed Misc. Application No.51/2017 for condonation of delay stating that since the cause of action in the present matter is a recurring nature, therefore, in view of the case of M.R.Gupta there is no question of any delay. The applicant also submits that he is residing at Bikaner and his counsel was residing at Jodhpur. Earlier he filed OA No.178/2012 (178/2014) seeking non- recovery of the benefit given by pay fixation in the grade of Rs.6500-10500 from 1.1.2006 and at that time his counsel advised him to wait for the outcome of the OA, because if the OA was allowed the major benefits would be covered in the OA. The applicant did not file the OA on this cause of action earlier. Now as the OA No.178/2012 (178/2014) and RA No.1/2017 have been dismissed, therefore, on the advice of his counsel the applicant has filed this OA and there is reasonable cause with the applicant in not filing the OA earlier.
4. The respondents have filed their reply dated 25.7.2017 and dated 9.4.2018. The respondents have raised preliminary objection pertaining to maintainability as also with respect to the plea of limitation. The respondents have submitted that the applicant earlier filed OA No.178/2014 challenging the order dated 17.7.2013 and 8.8.2013 4 carrying out re-fixation of his pay in accordance with law and effecting recovery from the applicant for the amount paid to him in excess of his entitlement. The said OA was dismissed by the Tribunal vide order dated 3.11.2016 where the applicant did not press prayer with regard to fixation of his pay in the pay band of Rs. 6500-10500 with grade pay of Rs. 4200 w.e.f. 1.1.2006 and the recovery has also been upheld by the Tribunal. Thereafter, the applicant filed RA No.1/2017 which has also been dismissed by the Tribunal vide order dated 25.1.2017. The applicant challenged the order dated 3.11.2016 before the Hon'ble Rajasthan High Court by filing DB Civil Writ Petition No.4262/2017 which has also been dismissed by the Hon'ble Rajasthan High Court, Jodhpur vide its order dated 3.5.2017. It is specifically denied by the respondents that the applicant in the earlier OA had grievance pertaining to recovery only but the fact is that he had filed the OA for fixation of his pay in the pay band of Rs. 6500-10500 with Grade Pay of Rs. 4200 w.e.f. 1.1.2006. It is to be noted that the said prayer of fixation of his pay was not pressed by the applicant as he was not entitled for the said pay.
The respondents have also prayed for dismissal of this OA on the principle of res-judicata/constructive res-judicata 5 stating that since the prayer with regard to pay scale of Rs. 6500-10500 (grade pay of Rs. 4200) has not pressed by the applicant in the earlier round of litigation i.e. OA No.178/2014. Now the applicant cannot be permitted to file another OA seeking grant of pay of Rs. 5500-9000 for Junior Translator. Therefore, the present OA is hit by the principle of res-judicata which stands admitted by the applicant that he was satisfied with his fixation of pay. Therefore, the relief claimed in the earlier OA when not pressed, the said reliefs are automatically relinquished and the same cannot be prayed in another subsequent proceedings. Therefore, as per the principle of res- judicata/constructive res-judicata, the applicant is barred seeking relief again by filing the present OA. The Hon'ble Supreme Court time and again in a catena of judgments have held that it is not permissible to obtain a second judgment for the same civil relief on the same cause of action or give rise to another cause of action on the same facts.
So far as the ground of limitation is concerned, the respondents also state that the present OA is liable to be dismissed being barred by limitation as the issue raised in the OA has already become stale and liable to be rejected 6 being abandoned and not pressed. The respondents have stated that the relief asked for in the year 2014 and not pressed, subsequently filing the present OA on 22.2.2017 claiming the same relief of fixation of pay is hit by limitation. Pertaining to representation of the applicant dated 27.7.2012, the respondents state that though the representation of the applicant has not been decided, but that did not prevent the applicant to agitate in the earlier round of litigation in OA No.178/2014. Now in the year 2017, if he files the present OA and seeks relief that the said representation be decided cannot be accepted as no ground has been mentioned for the delay to be condoned in filing the present OA
5. We have heard Shri T.C.Gupta, learned counsel for the applicant and Shri Sunil Bhandari, counsel for the respondents and perused the material available on record.
6. The applicant contended that since he is seeking similar benefits and relief of pay scale of Rs. 5500-9000 notionally from 27.4.2001 and actually from 1.2.2003 which was given to similarly situated Junior Hindi Translators, there is no question of any delay in approaching this Tribunal. It is his further submission that in the earlier 7 round of litigation he had asked for relief of re-fixation of pay in the pay band of Rs. 6500-10500 (Grade Pay of Rs. 4200) w.e.f. 1.1.2006, but in the present OA he is seeking grant of pay scale of Rs. 5500-9000 notionally from 27.4.2001 and actually from 1.2.2003. Therefore, the present OA is not similar to OA No.178/2014.
7. The respondents relying on the submissions made earlier have stated that the stale relief not pressed in the earlier round of litigation i.e. OA No.178/2014 cannot be re- opened in the present OA and therefore, the present OA deserves to be dismissed as the same is barred by the principles of res-judicata as well as limitation. Mere submission of the applicant that it is recurring cause of action and therefore, as per the M.R.Gupta's case the OA is not hit by limitation, cannot be accepted.
8. Considered the rival contentions of the parties.
9. It is clear that the applicant had earlier filed OA No.178/2014. In the said OA he has challenged the order dated 17.7.2013 whereby the respondents had re-fixed his pension and order dated 8.8.2013 for recovery of excess payment made to him towards salary. At para-6 of the said judgment, it has been mentioned that:-
8
"Shri Kamal Dave, learned counsel for the applicant made a submission at the Bar that he is not pressing his prayer for quashing of impugned order dated 17.7.2013, whereby respondents have re-fixed pay of the applicant and is only pressing his second prayer not to effect recovery of the excess payment towards salary."
From the statement made by the learned counsel for the applicant it is clear that the applicant had not pressed the relief towards fixation of pay. The said OA was dismissed by this Tribunal. Thereafter the applicant had filed RA No. 1/2017 challenging the order of the Tribunal. The said RA was also dismissed by this Tribunal vide order dated 25.1.2017. Thereafter the applicant approached the Hon'ble High Court and it has been clearly recorded in the judgment and order of the Hon'ble High Court dated 3.5.2017 passed in DB Civil Writ Petition No.4262/2017 at para-1 that:-
"Having heard learned counsel for the petitioner we find no merit in the petition for the reason before the Tribunal the appellant conceded that his initial pay fixation entitling him to higher pay was incorrect and re-fixation was correct."
The said Writ Petition filed by the applicant was dismissed. When the matter attained its finality before the Hon'ble High Court and when the re-fixation of pay was stated by the applicant before the Hon'ble High Court to be correct in the appropriate pay scale, now the applicant is estopped from raising the same plea of incorrect fixation of 9 pay before this Tribunal in the present OA. It would be relevant to mention here that the 6th CPC recommended merger of three pre-revised pay scale of Rs. 5000-8000, Rs. 5500-900 and Rs. 6500-10500 in the Pay Band-2 (Rs. 9300-34800) with Grade Pay of Rs. 4200. The applicant though raised the issue of re-fixation of pension but the said issue was not pressed in the earlier round of litigation. Now in the present OA he states that his fixation is not correct and he should be granted similar benefits as granted to the applicant in OA No.2006/2009 decided by the Principal Bench of this Tribunal. The plea of the applicant that he is similarly situated to those applicants cannot also be accepted at this stage. The applicant filed earlier OA being No.178/2014 in the year 2014. The Principal Bench order granting pay scale of Rs. 5500-9000 to Junior Translators was delivered on 18.9.2009. The applicant is seeking similar relief by filing the present OA in the year 2017. It is settled law that a person who sleeps over his rights for years together and suddenly wake up from the deep slumber and asks for a relief that has been granted to some persons, who were similarly situated, cannot be accepted in view of the catena of judgments of the Hon'ble Apex Court. The case of M.R.Gupta vs. UOI, 10 (1995) 4 SCC 628 relied upon by the applicant is not applicable in the facts and circumstances of the case, as the applicant has already raised the issue of fixation of pay scale, which was not pressed and he is estopped by law raising the said plea again in another OA.
10. In the case of Jagdish Lal & Ors. v. State of Haryana & ors. reported in (1997) 6 SCC 538, the Hon'ble Apex Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit. In that case it was observed as follows :
" The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Vir Pal Singh Chauhan case. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage."
11. A three Judges Bench of Hon'ble Apex Court in the case of Bhoop singh vs. Union of India etc. (1992) 3 SCC 136, ruled that:-
"Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified in acting on that belief. This is more so in service matters where vacancies are required to be filled promptly. A person cannot be permitted to challenge the termination of his service after a period of twenty-two years, without any cogent explanation for the inordinate delay, merely because others similarly dismissed had been reinstated as a result of their earlier petitions being allowed.11
Accepting the petitioner's contention would upset the entire service jurisprudence".
12. In the case of D.C.S Negi v. U.O.I, SLP (Civil) No. 7956 of 2011 CC No. 3709/2011 decided on 11.3.2011, it has been held as under:
"A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21(1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21(3)".
13. In the case of State of Karnataka and Ors. vs. S.M.Kotrayya and Ors., (1996) 6 SCC 267, the Hon'ble Apex Court observed as under:-
"9. Thus considered, we hold that it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-sections (1) or (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be required to satisfy itself whether the explanation offered was proper explanation. In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required to them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal is wholly unjustified in condoning the delay."12
14. In the case of A.P.Steel Re-Rolling Mill Ltd.Vs. State of Kerala, (2007) 2 SCC 725, the Hon'ble Apex Court held that:-
"26. The benefit of a judgment is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this Court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief.
15. In view of above, it is clear that the applicant cannot claim the benefit at this belated stage, which has already been relinquished and not pressed for in the earlier OA no.178/2014. Therefore, on the principle of res-judicata as well as on limitation, the OA deserves to be dismissed and accordingly, it is dismissed with no order as to costs.
16. The Misc. Application for condonation of delay also stands dismissed.
(ARCHANA NIGAM) (HINA P.SHAH) ADMV. MEMBER JUDL. MEMBER R/