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Judgment
Hon’ble Mr. Chhabilendra Roul, Member (A):
1. When the matter was taken up, learned counsel for the respondents raised an objection with regard to the maintainability of the present O.A. on the ground of constructive res judicata. He referred to the order dated 05.12.2017 passed by this Tribunal in O.A. No. 4264/2017, wherein the Tribunal passed the following order:
“Heard the learned counsel for applicant.
2.The applicant, a retired Yoga Teacher under the respondents – Kendriya Vidyalaya Sangathan, filed the instant O.A. seeking the following reliefs:-
“i)call for the complete relevant records from Respondents pertaining to the present case.
ii) direct the Respondents to make the payment of balance Gratuity amount in terms of the Notification dated 04.08.2016/25.07.2016 along-with interest @ 12% p.a. w.e.f. 01.01.2017 till actual realization thereof;
iii) direct the Respondents to compute and pay the balance GPF amount along-with accrued interest and further interest @ 12% p.a. w.e.f. 24.01.2017 till actual realization thereof;
iv) direct the Respondents to fix the Pension and pay the total accumulated pension up to date along-with interest @ 12% p.a. w.e.f. 01.01.2017 till actual realization thereof;
v)direct the Respondents grant of Super Senior Scale to the Applicant w.e.f. from the date the same become applicable and payable; and
vi) pass such order and/or further order as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the present case.”
3.It is submitted that the applicant made number of representations including Annexure-A/9 (Colly) dated 19.09.2017, ventilating his grievances to the respondents, however, no orders have been passed thereon till date.
4.In the circumstances, the O.A. is disposed of without going into the merits of the case, with a direction to the respondents to decide Annexure-A/9 (Colly) representation of the applicant, by passing a reasoned and speaking order within a period of 90 days from the date of receipt of a certified copy of this order, in accordance with law. No costs.
5.Let a copy of the O.A. be enclosed to this order.”
Referring to the aforesaid order, learned counsel for the respondents submits that the present O.A. is substantially identical to O.A. No. 4264/2017, inasmuch as the reliefs sought therein are substantially the same as those sought in the present O.A. He submits that, instead of pursuing the remedy available under the order dated 05.12.2017, the applicant has instituted the present O.A. seeking substantially the same reliefs, without availing the appropriate statutory remedy arising from the earlier order.
Learned counsel for the respondents, therefore, contends that the present O.A. is barred by the principle of res judicata and deserves to be dismissed at the threshold.
Per contra, learned counsel for the applicant refers to Section 11 of the Code of Civil Procedure, 1908, including Explanation IV thereto, which embodies the principle of constructive res judicata. The relevant provision reads as under:
“11. Res judicata .-
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I .-The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II .-For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III .-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI .-Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.[
Explanation VII .-The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII .-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.].”
Learned counsel for the applicant submits that the order dated 05.12.2017 itself records that the earlier O.A. was disposed of without going into the merits of the case and that the respondents were merely directed to consider and decide the representation of the applicant by passing a reasoned and speaking order within a period of 90 days. He further submits that the said direction has not been complied with by the respondents till date.
It is, therefore, contended that the issues raised in the present O.A. were never adjudicated upon on merits in the earlier proceedings and, consequently, the present O.A. cannot be said to be barred by the principle of constructive res judicata.
We have heard learned counsel for the parties and perused the record.
From a perusal of the order dated 05.12.2017 passed by this Tribunal in O.A. No. 4264/2017, it is evident that the applicant had, in the earlier proceedings, raised grievances substantially identical to those raised in the present O.A. In particular, the relief claimed in clause (ii) of the earlier O.A. with regard to payment of the balance gratuity amount, together with interest, corresponds substantially to the relief sought in the present O.A. The only material variation pointed out is with regard to the rate of interest claimed, which is now stated to be 24% per annum instead of 12% per annum claimed in the earlier O.A at relief clause at 8(ii).
It is also not in dispute that the earlier O.A. was disposed of on 05.12.2017 with a specific direction to the respondents to consider and decide the applicant's representation dated 19.09.2017 by passing a reasoned and speaking order within 90 days from the date of receipt of a certified copy of the order.
Thus, the applicant had already approached this Tribunal in respect of the very grievances which form the subject matter of the present O.A. The order passed in the earlier proceedings provided a specific course of action to be followed by the applicant, namely, to pursue the consideration of his representation in terms of the direction issued by the Tribunal.
During the course of hearing, a specific query was put to learned counsel for the applicant as to why, instead of pursuing the remedy arising out of the order dated 05.12.2017, the applicant had instituted the present O.A. Learned counsel for the applicant submitted that the applicant had been suffering from prolonged illness and, on account thereof, could not pursue the earlier proceedings and therefore, could not take appropriate steps for execution of the said order.
We have considered the aforesaid explanation. However, the same does not satisfactorily explain the institution of the present O.A. seeking substantially the same reliefs which had already been sought by the applicant in O.A. No. 4264/2017.
The mere fact that the earlier O.A. was disposed of without adjudication on the merits does not, in the facts and circumstances of the present case, entitle the applicant to maintain a successive O.A. seeking substantially the same reliefs while bypassing the course of action arising from the earlier order. The applicant cannot be permitted to reopen the same grievance through a fresh proceeding without first pursuing the remedy already available to him.
In view of the foregoing discussion, we are of the considered view that the present O.A., insofar as it seeks substantially the same reliefs which were the subject matter of O.A. No. 4264/2017, is not maintainable. The filing of the present O.A. amounts to pursuing a course of litigation which ought to have been pursued in the earlier proceedings and is, therefore, hit by the principle underlying constructive res judicata.
Accordingly, the present O.A. is dismissed on the ground of constructive res judicata. However, the applicant is at liberty to pursue the order dated 05.12.2017 in OA No. 4264/2017 as per law.