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Judgment
S. Sankarasubban, J.—The petitioners in these original petitions are Franchisees of the Tetecommunication Department maintaining and operating pay-phone facilities. As per the agreement between the parties, the petitioners were permitted to charge Re. 1/- per unit call from the callers of the telephone. In the case of STD calls, the operators were allowed to deduct 20 paise per unit call as commission and the balance amount had to be paid to the Department. In 1989, the Department introduced a slab system with regard to such commission. For the first 10,000 calls, the commission was fixed at 20 paise per unit call and the next 5,000 calls the commission was 10 paise and for the remaining calls the commission was fixed as 5 paise. But these three tier, slab system was not enforced because of the protest from the operators and on 2-5-91 the Department introduced a two tier slab system. As per the two tier slab system, the commission was fixed at 20 paise per unit call upto 10,000 calls and 10 paise per unit call for the remaining calls. The petitioners who are operators filed original petitions challenging the new two tier slab system, A number of other petitions were also filed. But the learned single Judge was of the view that the entire question was in the realm of contract and hence the learned single Judge refused to interfere in this matter. Against the common judgment a number of Writ Appeals were filed namely W.A. 1748/95 and connected cases. The Division Bench which heard the Writ Appeals disposed of the same by judgment dated 23-2-96. Ultimately this is what the Division Bench stated :--
"In the result, we direct the Telecommunication Department to allow the PCO Franchisees (except those PCO Franchisees who have executed agreements subsequent to circular No. 31-13/91- PHB dated 14-8-1992) to deduct 20 paise as commission per unit call irrespective of the number of such calls. But we make it clear that it is open to the Department to permit the commission rate as per the two tier system from those PCO Franchisees who have executed agreements in accordance with circular No. 31-13/91-PHB dated 14-8-1992."
Thus the Division Bench decision classified the operators into two those who had executed agreements subsequent to the circular dated 14-8-92 and those who had executed the agreements before 14-8-92. Those who had executed the agreements before 14-8-92 were allowed to deduct 20 paise as commission per unit call irrespective of the number of such calls. Thus going by Ext. P2 judgment, the persons like the petitioners who had executed agreements before 14-8-92 were declared to have a commission of 20 paise per call. The claim of the petitioners in these original petitions is that the benefit of the Division Bench should be extended to them. Normally there cannot be any dispute for granting such prayer. But counsel for the Central Government opposes this prayer. According to them, the petitioners filed O.P.No. 10419/95 and 7091/95 challenging the circular dated 2-5-91. Those original petitions were dismissed by the learned single Judge. But the petitioners did not prefer an appeal. It is true that the common judgment which was delivered in all these cases was reversed by the Division Bench in appeal filed by other persons. Hence according to Department, since the petitioners did not prefer an appeal, they are bound by the judgment of the learned single Judge and hence two tier slab system is applicable to them. Immediately after the decision of the Division Bench, the petitioners filed O.P. No. 5396/96. The prayer in that O.P. was to quash the bills'' issued by the Department by which the petitioners entitled for commission at the rate of 20 paise per unit irrespective of the call was denied. The learned single Judge who heard the writ petition by judgment dated 26-3-96 held as follows :--
"Prima facie the observations in Ext. P3 cannot be upheld. I direct the 1st respondent to issue revised bills having regard to commission payable to them in view of the judgment in W.A. 84-96 a copy of which will be furnished to him by the 1st petitioner. Till a decision is taken these telephones will not be disconnected."
But inspite of judgment in O.P. 5396/96, the Department issued bills according to slab system. This necessitated the filing of the other original petitions. It seems that the judgment in O.P. 5396/96 was reviewed and the case also posted for hearing. Hence all these cases are posted together.
A counter-affidavit has been filed on similar lines in all these cases. In the counter-affidavit, it is stated as follows :--
"The petitioner filed writ petition before this Hon''ble Court. The said original petition was dismissed by this Hon''ble Court through a common judgment dated 22-11-95. No appeal has been preferred by the petitioner against the judgment. Therefore the judgment of the learned single Judge will bind the petitioner."
The main attack against the granting of relief by the learned Central Government Counsel is that the petitioners are bound by the principles of res judicata and hence they are not entitled to relief. The respondents cited the following decisions. In Somukuttan Nair v. State of Kerala (1997) 1 K LT 601, Premier Tyres Ltd. v. Kerala tate Road Transport Corporation (1993) 2 KLT 130 , Sulochana Amma Vs. Narayanan Nair, ; Shantilal Rampuria and Others Vs. Vega Trading Corporation and Others, and in Asstt. General Manager, Central Bank of India and Others Vs. Commissioner, Municipal Corporation for the City of Ahmedabad and Others, The above decisions are relating to resjudicata u/s 11 of the Code of Civil Procedure. They mainly relate to cases where when two cases are disposed of by a common judgment and if only one appeal is filed and no appeal is filed in the other case, the appeal will be barred by res judicata. But the present case is different. Here the question is whether Telecommunication Department which is a statutory body is entitled to deduct as commission of any amount violating the directions contained in W.A. 84/96 and other connected petitions. In paragraph 11 of the W.A. 84/96 this Court gave a declaration that those who had executed an agreement prior to 14-8-92 are entitled to deduct commission as 20 paise per call irrespective of number of calls. This is a declaration made by this Court in exercise of its power under Article 226 of the Constitution of India. As already stated this declaration was made against the Telecommunication Department. If they are aggrieved by this decision, they should have attacked the judgment. In so far as the direction is alive, the Department is bound to follow the direction. It is true that the petitioners had earlier approached this Court for the same relief. But that was dismissed on the ground that this Court will not interfere in contractual matters. But the question is not one of res judicata. The question is whether a person like the respondents under Article 12 of the Constitution of India can adopt different standard for the same class of people. If as per the judgment in W.A. the franchisees who have executed agreement before 14-8-92 are entitled to deduct a commission of 20 paise, there is no reason to single out the petitioners merely because they approached this Court and failed. I would construe the judgment of the Writ Appeal as declaratory one. If it is a declaratory one, then that is binding on the department with respect to every subscriber coming under it. Hence according to me, the question of res judicata does not arise in this case. Hence the revised bills issued by the Department are cancelled. The Department is directed to issue fresh bills in accordance with the directions in the judgment in W.A. 84/96. But I make it clear that this direction is only to apply with respect to those people who have executed the agreement before 14-8-92.
The original petitions are disposed of with the above directions.