IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF DECEMBER, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.15269 & 20450 of 1996; 18710 of 1997; 21322 & 23199 of 1999; 4202, 26193, 26214 & 26435 of 2000; 17748 of 2001; 42202, 11485, 11702, 11903, 12019 and 12813 of 2002; 13501, 13594 & 15134 of 2005 and batch WRIT PETITION Nos.15269 of 1996: Between: Union of India, reptd., by Divisional Railway Manager (Commercial), South Central Railway, Vijayawada and four others. … Petitioners And The Additional District Judge, West Godavari District, Eluru and 39 others. … Respondents Counsel for the petitioners : Sri T.Ramakrishna Rao, Senior Standing Counsel for Central Government & Sri T.S.Venkata Ramana. Counsel for respondents : Government Pleader for Labour & Sri K.Raghuveer Reddy. This Court made the following: COMMON JUDGMENT:- This batch of Writ Petitions is filed by the Union of India, represented by the Divisional Railway Manager (Commercial), South Central Railway, Vijayawada and other functionaries of South Central Railway, wherein orders dated 26-10-1995 in A.S.No.61 of 1986 on the file of the Additional District Judge, West Godavari, Eluru and the various consequential orders passed by the Authority under the Payment of Wages Act, 1936 & Deputy Commissioner of Labour, Eluru, (for short “the Authority”) in favour of the respondents for payment of withheld wages are assailed. Background facts:- In order to adjudicate the various issues raised in these cases, it is necessary to refer to the facts in detail. The Railway Porters working in Eluru Railway Station approached the Authority with two different applications – one for the withheld wages for the period from January, 1983 to August, 1984 and the other for the similar claim for the period from September, 1984 to August, 1985. The said two applications were rejected by the Authority by order dated 31-7-1986 on the ground that the said claims were beyond the jurisdiction of the said authority as they pertained to claims for potential wages. He, however, took note of the contention of the counsel for the Railways that the Railway Board’s instructions for payment of wages on hourly basis are being implemented. While taking note of the said representation, the Authority noted that the workers did not appear to have been satisfied with the calculation of daily hours of work and also made a mention of the suggestion made by both the parties that they would agree for fixing the daily wages of work of the licenced porters at Eluru and Tadepalligudem Railway Stations by the State Labour Officer, Eluru. The said order was carried in two appeals filed by the porters before the District Judge, West Godavari, Eluru, which was taken on file as A.S.Nos.60 and 61 of 1986. A.S.No.60 of 1986 related to claim for wages from September, 1984 to August 1985 and A.S.No.61 of 1986 pertained to the claim for wages from January, 1983 to August, 1984. The said two appeals were allowed by the District Court by its common order dated 3-8-1997 wherein the Court held that the Railway Porters were employed by the Railways and that the Payment of Wages Act, 1936 (for short “the 1936 Act”) did not make a distinction between the persons regularly employed and the persons casually employed. The District Court, thus, negatived the contention of the Railways that the Act has no application to the claims made by the porters. Questioning the said order, the petitioners filed Writ Petition No.15785 of 1987. This Court allowed the said Writ Petition and remanded the cases to the learned District Judge to consider the following issues: “ 1. Whether the respondents in the writ petition (railway porters at Eluru Railway Station) are employed persons within the meaning of Section 15(2) of the Payment of Wages Act? 2. If so, whether they are entitled to maintain an application under Section 15(1) of the Act claiming wages on hourly basis as per Railway Board’s Order No.69- TGII/1010/29/SC/R-39 dated 8-6-1981? 3. What is the quantum of the amount the respondents are entitled?” After remand, A.S.Nos.60 and 61 of 1986 were disposed of by two different orders by the learned Additional District Judge, West Godavari, Eluru, after considering the oral and documentary evidence adduced by both the parties. A.S.No.60 of 1986 was decided on merits by holding all the three issues against the porters. But, A.S.No.61 of 1986 was remanded to the Authority with the direction to it to decide the application filed by the porters for condonation of delay in making their claim for wages, and, after deciding the same, to dispose of the porters’ claim on merits by giving opportunity to both the sides in support of their respective contentions. While the porters have not challenged the order of the District Court in A.S.No.60 of 1986, the petitioners herein have not immediately questioned the order in A.S.No.61 of 1986. After remand, notices were issued by the Authority to the petitioners and they have not contested the application for condonation of delay. Accordingly, the petitioners were set ex parte on 02.03.1996 and order was passed on 16.03.1996 in PWMP.No.27 of 1985 condoning the delay of one year nine months in making the claim for the differential wages for the period from January, 1983 to August, 1984. Similarly, notices were received by the petitioners for hearing of the claim petition. While petitioner Nos.4 and 5 were set ex parte on 02.04.1996, petitioner Nos.1 and 3 i.e., The Divisional Railway Manager (Commercial) and the General Manager did not appear on 15.04.1996 though the representative of the Divisional Railway Manager appeared on 02.04.1996 and sought for an adjournment. Hence, they were set ex parte on 15-4-1996. Thereafter, the main case for differential wages renumbered as PW.4 of 1996 was disposed of by the Authority by order dated 11.05.1996 by allowing claim for Rs.2,33,962=84 ps being the withheld wages for the aforementioned period along with Rs.11,69,814=20 ps representing five times the wages as compensation. Even these orders were not questioned by the petitioners. Instead, the petitioners filed I.A.No.1 of 1996 to set aside the ex parte orders, which was dismissed by the Authority on 30.07.1996. A few days before the said order was passed, the petitioners filed WP.No.15269 of 1996 questioning order dated 26.10.1995 in A.S.No.61 of 1986. None of the abovementioned orders passed by the Authority after the remand of the case were even referred to in the affidavit filed in support of the writ petition nor copies thereof were filed by the petitioners along with the writ petition. However, after hearing of the cases was commenced before this Court, the petitioners filed WPMP.No.34217 of 2008 seeking leave of this Court to amend the affidavit in the writ petition by adding paragraphs 1 to 11 of the additional affidavit as paragraphs 9 to 19 of the original affidavit and also to amend the memorandum of writ petition by adding the words “in case PW.No.4 of 1996 dated 11.05.1996” after the words “and the consequential orders passed by the Deputy Commissioner of Labour, Eluru”. Quite curiously, even in this amended application, the petitioners have not questioned order dated 30.07.1996 passed in I.A.No.1 of 1996 by the Authority, whereby it refused to set aside ex parte order dated 11.05.1996 passed in PW.No.4 of 1996 pertaining to the claim of the respondents for withheld wages. It may be mentioned at this juncture that a similar order was passed by the Authority in PW.No.5 of 1996, which related to the claim for wages for the period from November, 1993 to November, 1995, wherein also despite receipt of notices by the petitioners they failed to contest the claim, on merits. The Authority passed both orders in P.W.4 and P.W.5 of 1996 on the same day. The petitioners filed WP.No.20450 of 1996 questioning the order in P.W.5 of 1996. All other Writ Petitions are filed by the petitioners questioning separate orders passed by the Authority from time to time in respect of the claims made by the porters of different Railway Stations coming under the jurisdiction of petitioner No.1 for different periods. W.P.Nos.18710 of 1997; 21322 & 23199 of 1999; 4202 & 26435 of 2000; 4220 & 11485 of 2002; 13501, 13594 & 15134 of 2005 were filed by the petitioners questioning the orders of the Authority passed on the claim petitions filed by the porters of Eluru Railway Station for differential wages from 1995 to 2001. Writ Petition Nos.26214 of 2000 and 11903 of 2002 were filed against the orders of the Authority allowing the claim petitions filed by the porters of Tadepalligudem Railway Station. Writ Petition Nos.26193 of 2000; 17748 of 2001; 11702 & 12019 of 2002 were filed against the orders of the Authority on the claim petitions filed by the Bheemavaram Railway Porters. Writ Petition No.12813 of 2002 was filed against the order of the Authority on the claim petition of Railway Porters of Nidadavolu Railway Station. For convenience, the station wise details of the claims and the respective writ petitions filed against the orders of the appellate and original authorities are shown in the following table. .No. Writ Petition Station to which the licenced porters belonged Case No. Claim period 15269 of 1996 Eluru AS.No.61 o f 1986 (PW.4/96) 1/83 to 8/84 26193 of 2000 Bhimavaram town 4/98 11/93 to 1/98 5 years delay in filing 17748 of 2001 Bhimavaram 5/98 11/93 to 3/98 11702 of 2002 Bhimavaram 2/99 2/98 to 1/99 12019 of 2002 Bhimavaram town 3/99 2/98 to 12/98 20450 of 1996 Eluru 5/96 11/93 to 11/95 18710 of 1997 Eluru 46/96 12/95 to 5/96 21322 of 1999 Eluru 2/98 6/97 to 1/98 23199 of 1999 Eluru 3/98 2/98 to 7/98 0. 4202 of 2000 Eluru 2/99 8/98 to 3/99 . 26435 of 2000 Eluru 3/99 4/99 to 9/99 2. 4220 of 2002 Eluru 5/2000 10/99 to 6/2000 3. 11485 of 2002 Eluru 1/2001 7/2000 to 6/01 4. 13501 of 2005 Eluru 1/04 4/02 to 10/03 5. 13594 of 2005 Eluru 2/03 7/01 to 3/02 6. 15134 of 2005 Eluru 4/03 7/00 to 6/01 7. 12813 of 2002 Nidadavole 5/99 3/98 to 12/98 8. 26214 of 2000 Tadepalligudem 3/98 2/94 to 11/97 3 years delay in filing 9. 11903 of 2002 Tadepalligudem 4/99 12/97 to 2/99 2 years delay in filing CONTENTIONS:- Sri T. Ramakrishna Rao, learned counsel assisted by Sri T.S.Venkataramana for the petitioners advanced the following contentions. 1. Order dated 26.10.1995 passed by the Additional District Judge in A.S.No.61 of 1986 is illegal, inasmuch as in the face of his own findings rendered in his order dated 26.10.1995 in A.S.No.60 of 1986 pertaining to the claim for wages from September, 1984 to August, 1985, there was no need to remand the case for consideration of application for condonation of delay in filing the claim petitions by the respondents for the period from January, 1983 to August, 1984, as the findings in A.S.No.60 of 1986 constitute res judicata. 2. The failure of the respondents to question A.S.No.60 of 1986 constitutes acquiescence and waiver on the part of the respondents. 3. The respondents failed to implead Union of India as party to the proceedings before the Authority and, hence, the claims were liable to be rejected in limini as held by the Supreme Court in Ranjeet Mal vs. General Manager, Northern Railway. Baroda House. New Delhi[1], Chief Conservator of Forests, Govt., of A.P., vs. Collector and others[2] and this Court in Lt. Rajender Singh Punia vs. Chief of Naval Staff and another[3]. 4. The authority has no jurisdiction to entertain the applications for differential wages as the respondents are not employed by the railways as held by the Supreme Court in Civil Appeal Nos.9381 of 1995, 752 and 753 of 1997 and WP (civil) No.480 of 1990. 5. The authority committed a serious error in rejecting the applications filed by the petitioners to set aside ex parte orders in PW.Nos.4 and 5 of 1996 on the ground of lack of power for such condonation, while condoning the delay of three, five and two years in filing the claim applications by the respondents in PW.Nos.3 and 4 of 1998 and 4 of 1999 respectively. 6. As the claims for differential wages exceeded Rs.1,600/- per month in respect of each of the respondents, the authority is denuded of the jurisdiction, if any, and, therefore, it ought not to have entertained the claim petitions. 7. The claims made by the respondents were for potential wages which stand excluded from the jurisdiction of the Authority under the provisions of the Act. 8. The orders passed by the Authority are not based on adequate evidence to arrive at the differential wages and that no proper evidence was adduced by the respondents to show that they worked for eight hours in a day and 9. Even if any part of the claims made by the respondents was payable, the petitioners are not liable to pay compensation in view of existence of bona fide dispute on the entitlement of the respondents to receive the differential wages. Sri K. Raghuveer Reddy, learned counsel for the respondents opposed the above contentions. He submitted that the order in A.S.No.60 of 1986 does not constitute res judicata as the claim petitions covered by A.S.Nos.60 and 61 of 1986 were different and were therefore based on different causes of action. Alternatively, he contended that as the petitioners entered into an agreement on 14.11.1988 with the authorized representative of the respondents and paid wages in accordance with such agreement for the period from November, 1984 to October, 1988, the respondents did not pursue A.S.No.60 of 1986 and assail the order passed therein by the appellate Court and therefore the findings rendered in such a case do not operate as res judicata. That the petitioners acquiesced in questioning the legality and the validity of order in A.S.No.61 of 1986 inasmuch as without immediately challenging the same, they tried to participate in the proceedings before the Authority by filing the application for setting aside the ex parte order. He further contended that the petitioners are employed by the railways and, therefore, the Authority is vested with the jurisdiction to entertain and adjudicate the claims for the withheld wages. He relied on the judgment of a learned Single Judge of this Court in Divisional Railway Manager, South Central Railway, Vijayawada and another Vs. The Labour Enforcement Officer (Central), Prakash Nagar, Rajahmundry and others4. He further submitted that under Section 3(c) of the Act, the railways are made responsible for payment of wages to the persons employed by it and the person nominated by the railways for payment of wages and other officers concerned were made parties and that, therefore, the claim petitions did not suffer from legal defect. The learned counsel also contended that the concept of potential wages has no application to the claims preferred by the respondents as the wages were agreed to be paid with reference to circular dated 08.06.1971 of the Railway Board, Ministry of Railways, Government of India and that the respondents adduced cogent evidence and convinced the Authority that differential wages as claimed by them were due and payable. With regard to the maximum ceiling of Rs.1,600/-, the learned counsel contended that the ceiling of Rs.1,600/- prescribed in Section 1(6) of the Act has no application in view of the notification in S.O.No.2831 dated 16.10.1960 issued by the Government of India in exercise of the powers conferred by it under sub-section 1 of Section 22-F of the Minimum Wages Act, 1948 (for short, ‘the 1948 Act’), wherein it is envisaged that the words “this Act” occurring in Section 15(2) of the 1936 Act shall be construed as reference to the 1948 Act or the Rules made thereunder. Alternatively, the learned counsel contended that even if such a ceiling applies, the respondents are prepared to forego the wages in excess of Rs.1,600/- per month wherever such excess wages exist. The respective submissions of the learned counsel for the parties are discussed hereunder: The plea of res judicata:- This plea of the petitioners is rested on order dated 26.10.1995 passed in A.S.No.60 of 1986. As noted hereinabove, the said case related to payment of differential wages for the period from September, 1984 to August, 1985. The said case was filed by the respondents against the order of the Authority rejecting their claim for differential wages on the premise that the Authority has no jurisdiction to entertain and allow payment of withheld wages. The appellate Court framed the following points: “1. Whether the appellants are the employees within the meaning of Section 15(2) of the Payment of Wages Act? 2. Whether the appellants are entitled wages the application U/s.15(1) of the Act, claiming the wages on hourly basis is maintainable as per the Railway Boards Order No.69/TGII/1010/29/SC/R-39, dated 08.06.1971? 3. Whether the order passed by the Deputy Commissioner of Labour is sustainable? 4. Whether the appellants are entitled to claim Rs.1,69,101=90 ps. The pending of 10 times to be paid amount?” The appellate Court recorded the oral evidence and received the documentary evidence adduced by both the parties. Purporting to analyze the evidence before it and the provisions of Section 15(2) of the 1936 Act, the appellate Court held: “The appellants will not come under the purview of Section 15(2) of the Act. The appellants are not the regular employees of the Railway Authority and there is no evidence adduced by the appellants to show that they can be treated as regular employees. On the other hand they have not led any evidence. They themselves are not examined to substantiate their claim.” (Emphasis added) Accordingly, the appellate Court held point No.1 against the respondents. Point No.2 was also held against the respondents, but a careful reading of the order does not disclose any discernible reason given to hold the said point against the respondents. Point Nos.3 and 4 were also held against the respondents in view of the findings given by it on point Nos.1 and 2. While the learned counsel for the petitioners strenuously contended that this order operates as res judicata on the question whether the respondents were employed by the railways, the learned counsel for the respondents advanced three contentions in resisting the same. Firstly, he submitted that the finding that the respondents are not employed by the railways was rendered by the appellate Court while dealing with the claim for payment of withheld wages for the period different from the period for which the respondents’ claims were adjudicated by the Authority. Therefore, according to the learned counsel, the doctrine of res judicata has no application. Secondly, he submitted that in view of payments made by the petitioners for the periods covered by the said order, there was no necessity of questioning the said order and thirdly, the petitioners waived their right to question order in A.S.No.61 of 1986, in pursuance of which the Authority reconsidered the petitioners’ claims and granted relief, as they have submitted themselves to the jurisdiction of the Authority following the said order passed in A.S.No.61 of 1986 by the appellate Court. In order to resolve this contentious issue, it is necessary to understand the true scope and purport of the doctrine of res judicata. The rule of res judicata is based on two principles; (1) The maxim nemo debet bis vexari pro una et eadem causa, meaning, no one ought to be twice vexed for one and the same cause, and (2) Public policy that there ought to be an end to the same litigation. Section 11 CPC is only a statutory recognition, but not the foundation of this principle (State of Karnataka vs. All India Manufacturers Organization5). I n Ishwar Dutt vs. Land Acquisition Collector and another6 the Supreme Court held that the doctrine of res judicata is a species of estoppel and it has got two limbs, namely; cause of action estoppel and issue estoppel. The Supreme Court held that in case of cause of action estoppel, the underlying principle upon which estoppel is based namely public policy and justice have greater force than the case involving subject matter estoppel. In Hope Plantations Limited vs. Taluk Land Board7, the Supreme Court held that if an issue, which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is a continuous cause of action, the parties may not be bound by the determination made earlier if in the meantime, law has changed or has been interpreted differently by a higher forum. In Mathura Prasad Bajoo Jaiswal and others vs. Dossibai N.B. Jeejeebhoy8, the Supreme Court held: “4. The rule of res judicata applies if “the matter directly and substantially in issue” in a suit or proceeding was directly and substantially in issue in the previous suit between the same parties and had been heard and finally decided by a competent Court. The Civil Judge, Junior Division, Borivli, decided the application between the parties to the present proceeding for determination of standard rent in respect of the same piece of land let for construction of buildings for residential or business purposes. The High Court has held that a decision of a competent Court may operate as res judicata in respect of not only an issue of fact, but mixed issues of law and fact, and even abstract questions of law. It was also assumed by the High Court that a decision relating to the jurisdiction of the Court to entertain or not to entertain a proceeding is binding and conclusive between those parties in respect of the same question in a later proceeding. 5. But the doctrine of res judicata belongs to the domain of procedure, it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent Court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since