THE HON'BLE SRI JUSTICE B.PRAKASH RAO And THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.1355 OF 2002 JUDGMENT: (Per the Hon’ble Sri Justice B.Prakash Rao) The appellant-unsuccessful writ petitioner filed this appeal under Clause 15 of the Letters Patent Act aggrieved against the order dated 26.04.2002 in W.P.No.17272 of 2000 passed by the learned Single Judge in dismissing the Writ Petition filed under Article 226 of the Constitution of India, inter alia, seeking to assail the action of the respondents-Food Corporation of India in seeking to exclude the members of the appellant/petitioner-Sangham for consideration of engagement under Direct Payment Scheme as per Circular No.1R(L)/31(21)/97 dated 05.11.1997 after declaring Clause IV (ii) of the said Circular requiring working of nine months during the previous twelve months or twelve months preceding cessation of operation in the depot, as illegal, arbitrary and violative of the provisions of Articles 14, 16, 19 (1) (g), 21 and 43 of the Constitution of India and further, to issue consequential direction to consider engagement of the members of the Sangham under the Direct Payment Scheme at FCI Godowns, Dowleshwaram, East Godavari District. The main grievance of the appellant-petitioner is that having regard to the acquisition of land for the purpose of providing warehouses and godowns and subsequent engagement, there could not have been any restriction of a later period, be it at twelve months or even nine out of twelve months. Therefore, such restriction would virtually deny their right to employment and other rights, as guaranteed under the Constitution. There being no serious dispute in regard to the chequered events, as held by the learned Single Judge, especially in regard to the earlier round of litigation at the instance of the very same petitioner involving virtually the self same claim and consequent reliefs, which were disposed of by this Court in W.A.Nos.520 of 1995, 780 of 1998 and W.P.No.28994 of 1998, the present claim once again for such relief irrespective of the fact that whether the aforementioned Clause IV (ii) of the Circular dated 05.11.1997 is valid or not, is squarely barred by the principles of Constructive res judicata. The learned Single Judge had taken note of the fact that the Circular was in existence on both the occasions, namely on the date of earlier litigation as well as the present litigation. Therefore, the said Circular not having been assailed in any manner whatsoever nature nor has come up for consideration as to its validity and the earlier proceedings having disposed of keeping in view of earlier Circular, no claim can once again be made by the petitioner and therefore, dismissed the Writ Petition. Hence, the appeal. Having heard the learned counsel on either side and on perusal of the material available on record, apart from the question as to the entitlement of the Members of the Sangham for being taken back on the Rolls or even to assail the correctness of the said Clause IV (ii) of the Circular dated 05.11.1997 is valid or not, though it is an act of repetition, it succinctly gives the facts of the case as involved from the beginning and hence, we deem it more appropriate to quote once again the order the learned Single Judge. “The petitioner is a Labour Contrary Society with Registration No.543/1985. Its members are labourers. There is another Society known as Priyadarshini Jattu Workers Labour Contract Cooperative Society with Registration No.D-1947, Dowleshwaram. The petitioner is working in collaboration and close association with this Society and there was common membership and right now the said Society is not functioning. In 1980, the FCI acquired 70 acres of land in Dowleshwaram, East Godavari Distict for construction of godowns and persons who are displaced by the acquisition and agricultural labour who were also rendered jobless pursuant to the acquisition constituted the petitioner-Samgham. It is stated that for the purpose of handling and transporting foodgrains at Dowleshwaram Godowns, the FCI was required to employ labourers and instead of employing labourers directly, the FCI was inviting tenders on the basis of which handling and transport contracts were being granted and on account of acute and unhealthy competition and to stay in contention the petitioner quoted a rate of 99.99% below the scheduled rate of the contract and thus for the period between 14-4-1988 and 8-11-1990 the handling and transport contract was given to the Sangham at a rate 99.99% below the notified schedule of rates and by reason of this the Samgham was paid Rs.300/- for the work valued at Rs.30 lakh. It was further stated that for the subsequent period between 9-11-1990 and 30-10-1992 one Sri Venkateswara Labour Contract Cooperative Society, Rajahmundry quoted 99.99% below the S.S.R. which was the lowest and accordingly it had obtained the contract for the said period. It is further submitted that for the years 1992-94 the FCI did not call for tenders but awarded contract on nomination basis to Sri Venkateswara Labour Contract Cooperative Society to do the work at scheduled rates prescribed by the FCI and the Sangham challenged the said action in W.P.No.13673/92 which was allowed on 1-4-1994 holding that the contract ought not to have been awarded on nomination basis, and the said Judgment was also confirmed in Writ Appeal filed by the parties. It is further submitted that thereafter the FCI invited tenders and in response to the invitation the Sangham submitted its tender and offered to undertake work at the rate of 0.01 paise for the work valued at Rs.1 lakh, and though this rate was the lowest the FCI awarded the contract to Sri Venkateswara Labour Contract Cooperative Society at the notified scheduled rates after calling for negotiations at Hyderabad on 16-7-1994 and the said contract was for the period 17-7-1994 to 16-7-1996, and aggrieved by the aforesaid action the Samgham filed W.P.No.13707/94 which was dismissed on the ground that the grant of contract to the Sangham at the rate quoted would result in exploitation of labour and encouragement of unfair labour practice and that the grant of contract to Sri Venkateswara Labour Contract Cooperative Society at S.S.R. rate was not unreasonable or arbitrary, and moved by the disturbing facts the Court took up the issue of payment of fair wages to the labourers suo motu and passed the following directions: “5. “In the facts and circumstances of the case and in exercise of the extra ordinary powers of this Court under Article 226 of the Constitution of India, I feel it just and necessary to direct 1st, 2nd, 3rd and the 5th respondents herein to deposit with the Collector, East Godavari District of Andhra Pradesh: (1) A sum of Rs.30 lacs minus Rs.300 = 29 lacs, 99 thousand, 7 hundred along with interest at the rate of 12 per cent per annum from 9.11.1990 to the date of deposit for the contract period 14.04.1988 to 08.11.1990 for being paid to the labourers directly, who actually performed the work, in the manner hereinafter indicated; and (2) A further sum of Rs.30 lacs minus Rs.30 = 29 lacs, 99 thousand, 9 hundred, 70 only along with interest at the rate of 12 per cent per annum from 01.11.1992 to the date of deposit for the contract period 09.11.1990 to 30.10.1992 for being paid to the labourers directly who actually performed the work, in the manner herein after indicated; within a period of 2 months from the date of this judgment. The direction for payment of interest, though may appear to be punitive in nature, is not in fact punitive. It is just and necessary, as well as reasonable in the circumstances of the case. A Government of India Undertaking just like that of the 1st respondent Food Corporation of India ought not have even thought of earning or saving income in the fashion it has done in the present case. The money, thus, saved was utilized by it during all these years and must not, therefore, hesitate to pay interest at the most nominal rate of 12 per cent per annum.” 6. xxxxxxxxxxxx 7. On receipt of the said amounts, the Collector, East Godavari District shall first ascertain from the records of the petitioner and those of the respondent as to the: (1) Names and addresses of the labourers who performed the work during the periods 14.04.1988 to 08.11.1990 and 09.11.1990 to 30.10.1992; and (2) The volume of work done by each of them; and then after due identification of the person or persons claiming the amount, pay the amount due to them as per volume of work done at the S.R. rate less the amount already paid to them, plus the interest that is worked out on the amount payable to them. All this be done as expeditiously as possible and after completion of the work a report shall be submitted before this Court by the Collector, who shall be at liberty to seek any clarification or guidance or direction, in case any difficulty is felt in implementation of these directions.” Against this judgment, FCI filed Writ Appeal No.520 of 1995 before this Court. Pending the appeal, this Court passed an interim order in W.A.M.P.No.956 of 1995 and W.A.M.P.No.94 of 1996. The learned Judge while declining to suspend the order of the learned Single Judge, modified the same to the effect that: “irrespective of the presence of the cooperative societies and irrespective of whether a labourer is a member of one or the other cooperative society or is not a member of any of the societies at all, the Food Corporation of India shall engage labourers for work and pay to them fair wages which they themselves admit to have determined.” Against this order dated 07.02.1996, Sri Venkateswara Labour Contract Cooperative Society filed SLP (Civil) Nos.5704-5705/96 in the Supreme Court of India. The same was dismissed by an order dated 26.03.1996. However, on an appeal filed by FCI, the Supreme Court granted interim stay of operation of the order passed in W.A.M.P.No.956/95 and W.A.M.P.No.94 of 1996 while granting Leave to Appeal on 22.04.1996. The Civil Appeal Nos.7321-7322 of 1996 filed by the Food Corporation of India against the order passed in two W.A.M.Ps. were disposed of by the Supreme Court on 11.12.1997. The Supreme Court while continuing the interim order and also clarifying that the stay order will have no impact on any subsequent agreement entered into by the FCI Workers Union with the management of FCI in connection with the introduction of direct payment scheme, left it open to all the parties to agitate before the High Court all the relevant issues in the Writ Appeal. Thus, their Lordships of the Supreme Court did not go into the merits of the case.” It was further stated that in the affidavit filed in support of the present Writ Petition that W.A.Nos.520 of 1996 and 780 of 1998 were disposed of by order dated 23.07.1998. Before the Court it was represented that from 1997 onwards Direct Payment System had been introduced in the FCI Godowns at Dowleshwaram which lays down criteria for engagement of Hamalies and the complaint of the Samgham that it is deprived work pursuant to the said Circular was not considered by the Honourable Division Bench which made the following observations: “It is not proper and appropriate to decide this aspect, which is really collateral to the controversy that has presented itself in the writ petition and the writ appeal. If the members of the writ petitioner-society are deprived of the opportunity to work in the FCI Godown by reason of the aforementioned agreement or otherwise, it is open to the society or the workmen concerned to agitate the issue either by raising an Industrial Dispute or by taking any other appropriate steps. We have no reason to think that the FCI will not treat all sections of labour fairly subject to inherent limitations. We need not, therefore, dilate on this aspect any further.” It was further stated that the 3rd respondent issued Circular No.1R(L)/31(21)/97 dated 05.11.1997 introducing Direct Payment System Labour pursuant to abolition of contract labour system in the depots of FCI, A.P. Region where Labour Cooperative Societies were functioning. The Circular states that only those workers who were already working in the Labour Cooperative Societies shall be indicated as Direct Payment System workers. It is also stated that the following general conditions contained in Para IV(ii) excludes the members of the Sangham from being engaged in the Direct Payment System: “(ii) The workers who are presently working and had worked and had been paid wages for atleast 9 months during the last 12 months or the 12 months preceding cessation of operations in the concerned depot will be considered for employment under Direct Payment System or ‘No work No pay’ System, as the case may be, as above.” It was further stated that the Sangham represented the matter but in vain. The members of the Sangham should have been included in the seniority list of handling labourers. It was further stated that the Circular dated 5-11- 1997 cannot be so interpreted as to exclude the members of the Sangham and on the relevant date the members of the Sangham could not be awarded work on account of series of Court cases. It was further stated that the members of the Sangham are deprived of work and livelihood and the provisions of Articles 14, 16, 19(1)(g) and 21 of the Constitution of India are violated. It was submitted that the Sangham filed W.P.No.28994 of 1998 for directions to the respondents to call for tenders for handling and transporting contract works of FCI or to provide equal opportunity to the members of the Sangham along with members of Sri Venkateswara Labour Contract Cooperative Society in the matter of allotment of work and the said Writ Petition was dismissed by order dated 20-4-2000 on the ground that there was no challenge to the circular dated 5-11-1997, but however it was observed that the said order would not come in the way of FCI administration for considering the claims of the members of the Sangham for appointment. It was further stated that the FCI did not take further action in the matter on the probable ground that the above was only in the nature of pious hope expressed by the Honourable Court but had no force of writ or direction for being implemented.” The aforesaid facts and the claim as set forth at the instance of the petitioner in the Writ Petition was contested by the respondents supporting their objection basing on the said Circular, which has come forth only after due deliberations as consequent to the directions which have been issued earlier. Therefore, nothing can be found fault with nor it create any right to call back or to assail the same in any manner or compass into the same. In fact, according to the respondents, such plea is not permissible since it has been barred by the principles of Constructive res judicata. We have once again considered all these developing events at the instance of the members of the appellant-Samgham and also the orders passed by this Court on the earlier occasion in detail and in depth. We do not find any reason to come to a different conclusion as found by the learned Single Judge having regard to the settled principles of res judicata and the bar, which necessarily connotes that one cannot go on adjudicating on the same issue. More over, even whether an opportunity did exist to assail the very correctness of the Circular and no such challenge having been made, it cannot be said that the petitioners can as well call back on the claim. It is also noted that even in this round of litigation, once again there is no conduct or any challenge to the very Circular except the aforesaid Clause. Even in regard to such Clause, having regard to the reasons and explanation as set forth in the counter affidavit and filed on behalf of the respondent, the learned Single Judge found that there is no mala fide intention or any ulterior motive behind the incorporation of the Clause. Therefore, it does not violate any right much less the one, which has been guaranteed under the Constitution. That apart, it is necessary to be taken note of the fact that, normally, in that general circumstances, no individual can have any enforceable right to make a claim at the very inception nor does it create any such right, which is enforceable under the Law nor the Courts have any power to make an exercise of judicial review to go into the correctness thereof. Since the very claim has no basic foundation or any legs to stand under the Law, it cannot be accepted to create a further right enforced in it. As far as the principles of res judicata are concerned, it does not call for any re-exercise or repetition of those as laid down by the Apex Court. Hence, this Court, at various points of time, cannot give two opinions nor there is any challenge as such in regard to such principles on behalf of the appellant as to the bar, which it creates both on the count of similar such challenge not having been made earlier and further, there existing no changed circumstances to reconcile it for enabling the appellant to approach the Court. In the circumstances, we fairly share the reasons given by the learned Single Judge in not conceding to the relief sought by the appellant, especially in exercise of such extraordinary jurisdiction under Article 226 of the Constitution of India. Hence, there are no merits in the Writ Appeal. Accordingly, the Writ Appeal is dismissed. No costs. _________________ (B.PRAKASH RAO, J) ________________ (SANJAY KUMAR, J) 6th October 2010 RRB