Ravindra Brahman vs State of M.P. and others

In this petition filed under Article 226 of the Constitution, petitioner has prayed for a direction to the respondents to release the benefit of Special Allowance of Rs.1,000/- in accordance with the circular dated 6.9.2008. It is further prayed that the respondents be directed to recalculate and pay the amount of gratuity to the petitioner. In short, the case of the petitioner is that he was working as a Chowkidar on daily rated basis. The respondents retired him on attaining the age of 60 years on 31.5.2008. This action was challenged by petitioner by filing WP No.8623/2008 which was decided on 22.2.2010 in favour of the petitioner (Annexure P/1). The petitioner was directed to be reinstated with all consequential benefits. This Court directed the respondents to permit the petitioner to work upto the age of 62 years.

The respondents did not comply with the order passed by this Court in aforesaid writ petition. This compelled the petitioner to file Contempt Petition No.691/2010. Meanwhile, respondents paid the amount of Rs.1,03,636/- to the petitioner towards back wages for the period between 1.6.2008 to 31.5.2010. The petitioner contends that the respondents although have paid the amount of gratuity to the petitioner, the gratuity was calculated by treating his services upto 31.5.2008 in place of 31.5.2010. The petitioner''s application for grant of proper gratuity by treating his date of retirement as 01.05.2010 went in vain.

The petitioner is also claiming the benefit of circular dated 6.9.2008 Annexure P/4 whereby the department sanctioned Special Allowance of Rs.1,000/- to such daily rated employees who have completed 20 years of service. To claim this benefit, petitioner preferred another representation dated 3.10.2011 which also could not fetch any result. The claim of the petitioner was rejected by order dated 5.7.2012 Annexure P/6. The respondents contended that since the petitioner stood retired in May, 2008 on completion of 60 years of service, he is not entitled to get Special Allowance which was applicable with effect from September, 2008.

Shri Manoj Chandurkar, learned counsel for the petitioner advanced singular contention. He submits that once the order passed in WP No.8623/2008 has attained finality, it is no more open to the respondents to treat the petitioner as retired with effect from May, 2008. For all practical purposes, petitioner should be treated as retired on 31.5.2010. More so, when respondents have already paid back wages to the petitioner for the intervening period between 1.6.2008 to 31.5.2010.

The learned Panel Lawyer opposed the relief by contending

that view taken by this Court in WP No.8623/2008 is not correct because law has been changed in 2011 (4) MPLJ 86 ( Badri vs. State ), a Division Bench of this Court held that daily rated employees are not entitled to continue upto the age of 62 years. Reliance is also placed on another order of this Court in the case of Ghasitelal vs. State of M.P. wherein same view is taken. Thus, in nutshell, it is submitted that petitioner can not claim gratuity on the basis that he retired on attaining the age of 62 years nor he can claim benefit of circular relating to grant of special allowance which was issued after his date of retirement dated 31.5.2008.

No other point is pressed by the learned counsel for the parties.

It is not in dispute that the order passed in the case of petitioner in WP No.8623/2008 had attained finality. As per this order, admittedly, petitioner was directed to be continued upto the age of 62 years. The core issue is whether a subsequent judgment of the Division Bench in another case will have the effect of nullifying the benefits given to the petitioner in his own case. In the considered opinion of this Court, the judgment passed in aforesaid WP has attained finality between the parties interse namely petitioner and his department. Any subsequent judgment, even of a larger strength will not have an impact of nullifying the order passed in favour of the petitioner. In 2014 (5) SCC 75 ( Dr. Subramanian Swamy vs. State of Tamil Nadu and others ), the Apex Court examined this aspect and opined as under:

"38. It is not a case to examine whether in the facts and circumstances of the case, the judgments of this court in various cases are required to be followed or the ratio thereof is binding in view of the provisions of Article 141 of the Constitution. Rather the sole question is whether an issue in a case between the same

parties, which had been finally determined could be negated relying upon interpretation of law given subsequently in some other cases, and the answer is in the negative. More so, nobody can claim that the fundamental rights can be waived by the person concerned or can be taken away by the State under the garb of regulating certain activities.

The scope of application of doctrine of res judicata is in question. The literal meaning of "res" is "everything that may form an object of rights and includes an object, subject-matter or status" and "res judicata" literally means "a matter adjudged a thing judicially acted upon or decided; a thing or matter settled by judgments". "Res judicata pro veritate accipitur" is the full maxim which has, over the years, shrunk to mere "res judicata", which means that res judicata is accepted for truth. The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence "interest reipublicae ut sit finis litium" (it concerns the State that there be an end to law suits) and partly on the maxim "nemo debet bis vexari pro uno et eadem causa" (no man should be vexed twice over for the same cause).

Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v. ED-, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302; and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors ., AIR 1953 SC 65).

In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors ., AIR 1953 SC 33, this Court while dealing with the doctrine of res judicata referred to and relied upon the judgment in Sheoparsan Singh v. Ramnandan Singh , AIR 1916 PC 78 wherein it had been observed as under:

"........ the rule of res judicata, while founded on ancient precedents, is dictated by a wisdom which is for all time..... Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha

include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus: ''If a person though defeated at law, sue again, he should be answered, ''''you were defeated formerly". This is called the plea of former judgment.''... And so the application of the rule by the courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law'''' (Sheoparsan Singh case, IA pp. 98-99)"

This Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr ., AIR 1960 SC 941 explained the scope of principle of res-judicata observing as under:

"7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct."

A similar view has been re-iterated by this court in Daryao & Ors. v. The State of U.P. & Ors ., AIR 1961 SC 1457; Greater Cochin Development Authority v. Leelamma Valson & Ors ., AIR 2002 SC 952; and Bhanu Kumar Jain v. Archana Kumar & Anr ., AIR 2005 SC 626.

The Constitution Bench of this Court in

Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors ., AIR 1964 SC 1013, considered the issue of res judicata applicable in writ jurisdiction and held as under:

"...Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under Article 32 or Article 226. It is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under Art. 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in courts of law."

In Hope Plantations Ltd. v. Taluk Land Board, Peermade & Anr ., (1999) 5 SCC 590, this Court has explained the scope of finality of the judgment of this Court observing as under:

"17..... One important consideration of public policy is that the decision pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by the appellate authority and other principle that no one should be made to face the same kind of litigation twice ever because such a procedure should be contrary to consideration of fair play and justice. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it." (See also: Burn & Co., Calcutta v. Employees, AIR 1957 SC, G.K. Dudani & Ors. v. S.D. Sharma & Ors ., AIR 1986 SC 1455; and Ashok Kumar Srivastav v. National Insurance Co. Ltd. & Ors ., AIR 1998 SC 2046)."

A three-Judge Bench of this Court in the State of Punjab vs. Bua Das Kaushal, AIR 1971 SC 1676 considered the issue and came to the conclusion that if necessary facts were present in the mind of the parties and had gone into by the court, in such a fact situation, absence of specific plea in written statement and framing of specific issue of res judicata by the court is immaterial.

A similar view has been re-iterated by this court in Union of India vs. Nanak Singh, AIR 1968 SC 1370 observing as under:

"This Court in Gulabchand Chhotalal v. State of Gujarat, AIR 1965 SC 1153 observed that the provisions of Section 11 of the Code of Civil Procedure are not exhaustive with respect to all earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decision after full contest."

(Emphasis Supplied)

In view of common string in various judgments of Supreme Court considered in the case of Subramanian Swamy (Supra), it is clear that the rights of petitioner were finally determined in his case W.P. No.8623/2008 which could not be negated relying upon interpretation of law given subsequently in some other cases.

Thus, petitioner has a valuable legal right to get the benefit of gratuity on the basis of his date of retirement (31.5.2010). For

all practical purposes, it shall be treated as if petitioner had continued in employment upto 31.5.2010. Accordingly, petitioner shall be entitled to get the benefit of circular dated 6.9.2008 which came to be issued much before his date of retirement i.e. 31.5.2010.

Ergo, the respondents shall recalculate the amount of gratuity in favour of the petitioner by treating his date of retirement as 31.5.2010. In addition, respondents shall grant him benefit of special allowance as per the circular dated 6.9.2008 with arrears till his date of retirement (31.5.2010). The entire exercise of recalculation and payment of gratuity as well as special allowance shall be completed within 60 days from the date of communication of this order failing which it will carry 12% interest till the date of actual payment.

Petition is allowed. No cost.