IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 WP(C).No. 11825 of 2008(S) -------------------------------------- OA.765/2001 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ............................................... PETITIONER: ------------------ K.P.PANICKER, S/O.LATE K.MADHAVAN NAIR, AGED 85 YEARS, ENGINEERING ASSISTANT (RETIRED) ALL INDIA RADIO, THRISSUR - 680 631, RESIDING AT LAKSHMI NILAYOM, VILAVATTOM PANCHAYATH, VIYYUR (PO), THRISSUR - 680 610. BY ADV. SRI.R.SREERAJ RESPONDENTS: ---------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE, NORTH BLOCK, NEW DELHI - 110 001. 2. THE SECRETARY, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSION, DEPARTMENT OF PERSONNEL & TRAINING, NORTH BLOCK, NEW DELHI - 110001. 3. THE SECRETARY, MINISTRY OF INFORMATION & BROADCASTING, SHASTRI BHAVAN, NEW DELHI - 110 001. 4. THE CHIEF EXECUTIVE OFFICER, PRASAR BHARAT, DOORDARSHAN DIRECTORATE, MANDI HOUSE, NEW DELHI - 110001. 5. THE DIRECTOR GENERAL, ALL INDIA RADIO, AKASHAVANI BHAVAN, NEW DELHI - 110001. WP(C) NO. 11825/2008 6. THE STATE DIRECTOR/ENGINEER, ALL INDIA RADIO, RAMAVARMAPURAM, THRISSUR - 680 631. 7. THE COMPTROLLER OF ACCOUNTS, MINISTRY OF I & B, SHASTRI BHAVAN, NEW DELHI - 110001. 8. THE PAY & ACCOUNTS OFFICER, ALL INDIA RADIO & TELEVISION, SWAMI SIVANANDA SALAI, CHENNAI - 600005. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R.1 TO R8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON 23/05/200 DELIVERED THE FOLLOWING: WP(C) NO. 11825/2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE ORDER DT. 30/3/2007 ON THE FILE OF THE CAT, ERNAKULAM BENCH. EXT.P2. COPY OF THE OA NO. 765/01 FILED BY THE PETITIONER BEFORE THE CAT, ERNAKULAM BENCH ALONG WITH ALL ITS ANNEXURE. EXT.P3. COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN OA NO. 765/2001 ON THE FILE OF THE CAT, ERNAKULAM BENCH. EXT.P4. COPY OF THE REJOINDER FILED BY THE APPLICANT IN OA NO. 765/01 ON THE FILE OF THE CAT, ERNAKULAM BENCH. EXT.P5. COPY OF THE ADDITIONAL REPLY REPLY STATEMENT FILED BY THE RESPONDENTS IN OA NO. 765/2001 ON THE FILE OF THE CAT, ERNAKULAM BENCH. EXT.P6. COPY OF THE ADDITIONAL REJOINDER FILED BY THE APPLICANT IN OA NO. 765/01 ON THE FILE OF THE CAT, ERNAKULAM BENCH EXT.P7. COPY OF THE COUNSEL STATEMENT DT. 3/1/2005 FILED BY THE RESPONDENTS IN OA NO. 765/2001 ON THE FILE OF THE CAT, ERNAKULAM BENCH. EXT.P8. COPY OF THE COUNSEL STATEMENT DT. 25/2/2005 FILED BY THE RESPONDENTS IN OA NO. 765/2001 ON THE FILE OF THE CAT, ERNAKULAM BENCH. EXT.P9. COPY OF THE SUMMARY OF ARGUMENTS FILED BY THE COUNSEL FOR THE PETITIONER TO EXPLAIN THE APPLICABILITY OF THE FINAL ORDER DT. 16/12/2002 IN OA NO. 1486/98 ON THE FILE OF THE PRINCIPAL BENCH OF THE CENTRAL ADMINISTRATIVE TRIBUNAL TO THE FACTS AND CIRCUMSTANCES OF OA NO. 765/2001. EXT.P10. COPY OF THE FINAL ORDER DT. 16/12/2002 IN OA NO. 1486/98 ON THE FILE OF THE PRINCIPAL BENCH OF CENTRAL ADMINISTRATIVE TRIBUNAL. EXT.P11. COPY OF THE FINAL ORDER FINAL ORDER DT. 20/5/05 IN OA NO. 765/2001 ON THE FILE OF CAT, ERNAKULAM BENCH. EXT.P12. COPY OF THE WPC NO. 11442/2006 BY THE RESPONDENTS HEREIN CHALLENGING EXHIBIT P11 FINAL ORDER, WITHOUT THE EXHIBITS THERETO. EXT.P13. COPY OF THE JUDGMENT DT. 21/08/2006 IN WPC NO. 11442/2006 ON THE FILE OF THIS COURT. WP(C) NO. 11825/2008 EXT.P14. COPY OF THE OA NO. 1073/98 FILED BY THE PETITIONER BEFORE THE CAT, ERNAKULAM BENCH. EXT.P15. COPY OF THE FINAL ORDER DT. 8/2/2001 IN OA NO. 1073/98 ON THE FILE OF CAT, ERNAKULAM BENCH. EXT.P16. COPY OF THE MISCELLANEOUS APPLICATION FILED BY THE PETITIONER FOR CONDONATION OF DELAY IN FILING THE OA 765/2001. RESPONDENT'S EXHIBITS: NIL. True copy Tga K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== W.P(C).No.11825 of 2008 ======================== Dated this the 23rd day of May, 2008. JUDGMENT Ravindran,J. The applicant in O.A.No.765 of 2001 on the file of the Central Administrative Tribunal, Ernakulam Bench is the petitioner and the respondents therein are the respondents in this writ petition. The petitioner has in this writ petition filed on 3.4.2008, prayed for setting aside Ext.P1 order dated 30.3.2007 passed by the Central Administrative Tribunal in O.A.No.765 of 2001 and to grant the reliefs prayed for therein. 2. The petitioner entered service as a Mechanic in All India Radio at Bangalore on 31.3.1956. He was promoted as Senior Mechanic in the year 1965 and as Engineering Assistant in September, 1974. He retired from service on 31.1.1982 on attaining the age of superannuation while holding the post of Engineering Assistant in All India Radio, Thrissur. 3. By Annexure A5 order passed on 29.6.1990, the Central WP(C) 11825/08 -: 2 :- Administrative Tribunal, Madras Bench held that the Engineering Assistants in the Doordharshan Kendra, Madras who were in the scale of pay of Rs.425-750 were entitled to be placed in the scale of pay of Rs.550-900 with effect from 1.1.1978 as was given to Sound Recordists in Doordharshan Kendras following the recommendations of the third central pay commission. By Annexure A5 order passed in O.A.No.654 of 1989, the Central Administrative Tribunal, Madras Bench, relying on the decision of the Apex Court in W.P.(C) No.974 of 1978, held that Engineering Assistants were also entitled to the benefit of the order dated 21.12.1988 issued by the Ministry of Information and Broadcasting in the matter of placement in the scale of pay of Rs.550-900. Annexure A5 order was delivered on 29.6.1990 and it was upheld by the Apex Court by order passed passed on 7.1.1991. Though the Central Administrative Tribunal, Madras Bench had thereafter allowed a review petition filed by the Union of India and set aside Annexure A5 order, the order passed in the review petition was set aside by the Apex Court by Annexure A6 order delivered on 25.11.1994. 4. The petitioner, who as stated earlier retired from service WP(C) 11825/08 -: 3 :- on 31.1.1982, was also given the benefit of Annexure A5 judgment by placing him in the scale of pay of Rs.550-900. As on 1.1.1978, the petitioner was drawing a basic pay of Rs.560/- in the pre-revised scale of pay of Rs.425-750. His next increment fell due on 1.9.1978 and his pay as on 1.9.1978 in the pre-revised scale was fixed at Rs.580/-. The petitioner was also given periodical increments in the revised scale of pay of Rs.550- 900 and his pay was fixed as per proceedings dated 9.12.1996 in terms of Rule 22 (1)(a)(i) of the Fundamental Rules. As per the said pay fixation the pay of the petitioner as on 1.1.1978 was fixed at Rs.600/- in the revised scale of pay of Rs.550-900 and his pay as on 1.1.1979 was fixed at Rs.625/-. The fixation of pay was thereafter objected to and the basic pay of the petitioner was refixed as per proceedings dated 12.2.1998, 30.3.1998 and 4.6.1998. Aggrieved by the said pay fixation orders, the petitioner filed O.A.No.1073 of 1998 before the Central Administrative Tribunal, Ernakulam Bench. In O.A.No.1073 of 1998, the orders dated 12.2.1998, 30.3.1998 and 4.6.1998 were produced and marked as Annexures A5, A6 and A7 respectively. The petitioner had in O.A.No.1073 of 1998, a copy of which is WP(C) 11825/08 -: 4 :- Ext.P14 prayed for the following reliefs: "i) to call for the records leading to Annexures A5 dated 12.2.98, A6 dated 30.3.98 and A7 dated 4.6.98 and set aside the same. ii) to direct the respondent to fix the pay of the applicant as Rs.600/- as on 1.1.78 in the revised scale of Rs.550-25-750-EB-30-900 and Rs.700 as on 1.1.82 with all consequential benefits. iv) to direct the respondents to refix the pension and retiremental benefits taking note of the basic pay or the last 10 months prior to 31.1.82 as Rs.700 and to give arrears of pension and retiremental benefits taking note of the basic pay of the last 10 months prior to 31.1.82 as Rs.700 and to give arrears of pension and retiremental benefits based on the refixation." 5. O.A.No.1073 of 1998 was filed in July, 1998. It came up for final hearing on 8.2.2001. On the submission made by the learned counsel appearing for the petitioner, O.A.No.1073 of 1998 was dismissed as withdrawn. Ext.P15, the order passed on 8.2.2001 by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.1073 of 1998 reads as follows: "After arguing the Original Application for some WP(C) 11825/08 -: 5 :- time, the learned counsel appearing for the applicant sought leave to withdraw the O.A. Leave is granted. 2. The Original Application is dismissed as withdrawn." 6. The petitioner thereafter filed O.A.No.765 of 2001 on 6.7.2001 challenging besides the orders marked as Annexures A5, A6 and A7 in O.A.No.1073 of 1998 (copies of which are Annexures A10, A11 and A12 respectively in O.A.No.765 of 2001) three other orders dated 15.5.1995, 14.8.1996 and 9.12.1996 which are produced and marked as Annexures A7, A7(a) and A9 respectively in O.A.No.765 of 2001. Ext.P2 is a copy of O.A.No.765 of 2001. The reliefs sought for by the petitioner in O.A.No.765 of 2001 from which this writ petition arises are as follows: "i) to call for the records leading to Annexure A-7 order No.310/15/93-B(I) dated 15.5.95, Annexure A-7(a) order No.PAO/AIR/MS/Pen V/96-97/300 dated 14.8.96, Annexure A-9 dated 9.12.96, Annexure A-10 dated 12.2.98, A-11 dated 30.3.98 and A12 dated 4.6.98 and set aside the same. ii) to direct the respondent to fix the pay of the applicant as Rs.550/- as on 16.9.74 in the revised scale of Rs.550-25-750-EB- WP(C) 11825/08 -: 6 :- 30-900 and Rs.725 as on 1.1.82 with all consequential benefits. iii) to direct the respondents to refix the pension and retirement benefits taking note of the length of service as directed by the Hon'ble Supreme Court and disburse the dues to the applicant in accordance with the said directions." 7. On a comparison of the reliefs sought in O.A.No.1073 of 1998 (Ext.P14) and O.A.No.765 of 2001 (Ext.P2) it can be seen that the prayers are identical and are related to fixation of pay in the revised scale of pay of Rs.550-900. It can also be seen that in O.A.No.765 of 2001, the petitioner has also challenged three orders which were impugned in O.A.No.1073 of 1998. Initially O.A.No.765 of 2001 was heard and allowed as per Ext.P11 order passed on 20.5.2005. The respondents herein filed W.P.(C) No.11442 of 2006 in this Court challenging the said order. In the said writ petition, the respondents raised a specific contention that in view of the dismissal of O.A.No.1073 of 1998, the second application, namely, O.A.No.765 of 2001 is barred by res judicata. By Ext.P13 judgment delivered on 21.8.2006, a Division Bench of this Court after noticing that the Tribunal has not considered the effect of Ext.P11 order dismissing O.A.No.765 of 2001 as withdrawn and also taking note of the fact that the WP(C) 11825/08 -: 7 :- Tribunal has not considered the impact of the office memorandum referred to in Ext.P8 statement filed on behalf of the respondents, set aside Ext.P11 order passed by the Central Administrative Tribunal in O.A.No765 of 2001 and remitted the matter back to the Central Administrative Tribunal for fresh consideration of various aspects including the effect of the order dismissing O.A.No.1073 of 1998 as withdrawn. The Central Administrative Tribunal thereafter considered O.A.No.765 of 2001 and by Ext.P1 order passed on 30.3.2007 held that in view of Ext.P15 order passed on 8.2.2001 dismissing O.A.No.1073 of 1998 as withdrawn, the second application, O.A.No.765 of 2001 is barred by res judicata. O.A.No.765 of 2001 was accordingly dismissed on that ground. The said order is under challenge in this Writ Petition. 8. We heard Sri.R.Sreeraj, the learned counsel appearing for the petitioner. The learned counsel contended that the finding of the Tribunal that Ext.P1 operates res judicata and the further finding of the Tribunal that the cause of action for the two applications is substantially one and the same, are not sustainable in law. The learned counsel for the petitioner WP(C) 11825/08 -: 8 :- contended that in order to attract the principles of res judicata, the issue that arose in O.A.No.1073 of 1998 should have been heard and finally decided on the merits and that the matter in issue in O.A.No.765 of 2001 should have been directly and substantively in issue in O.A.No.1073 of 1998. The learned counsel also contended that the causes of action for the two applications are different and distinct. It was also contended that the respondents have not in the pleadings objected to the maintainability of O.A.No.765 of 2001 on either of the two grounds and therefore, Ext.P1 is liable to be set aside. 9. We have considered the submissions made at the bar by the learned counsel for the petitioner. On a reading of Ext.P14 application in O.A.No.1073 of 1998 and Ext.P2 application in O.A.No.765 of 2001, it is crystal clear that the cause of action for the two applications is one and the same. The claim of the petitioner in both the applications is founded on Annexure A5 order passed by the Central Administrative Tribunal, Madras Bench in O.A.No.654 of 1989 and the reliefs sought in both the applications were in relation to fixation of the petitioner's pay in the revised scale of pay of Rs.550-900 and consequential revision WP(C) 11825/08 -: 9 :- of terminal benefits and payment of arrears thereof. Though in Ext.P14 application (O.A.No.1073 of 1998) the prayer was for fixation of pay in the revised scale of pay of Rs.550-900 with effect from 1.1.1978, in O.A.No.765 of 2001 a larger relief had been sought claiming fixation of pay in the revised scale of pay with effect from 16.9.1974. That by itself does not make the second application one founded on a different cause of action. 10. In our opinion, there is no merit in the challenge to Ext.P1. A close reading of Ext.P14 and P2 applications discloses that the claim of the petitioner is for fixation of pay in the revised scale of pay of Rs.550-900 The claim made in Ext.P14 application (O.A.No.1073 of 1998) was abandoned by the petitioner when he chose to withdraw the said application and based on the petitioner's request, the Central Administrative Tribunal, Ernakulam Bench dismissed O.A.No.1073 of 1998 as withdrawn. It is thereafter that the second application, O.A.No.765 of 2001 was filed on 6.7.2001. Ext.P15 order discloses that the Tribunal had not while dismissing O.A.No.1073 of 1998 as withdrawn, granted leave to the petitioner to file a fresh application in respect of the reliefs sought therein. The Apex WP(C) 11825/08 -: 10 :- Court has in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others - A.I.R.1987 S.C. 88 held that a petitioner cannot after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution without seeking and being granted leave to institute a fresh writ petition, file a fresh writ petition in respect of the same cause of action in the High Court. The Apex Court held as follows: "9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Art.226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying R.1 of O.XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a WP(C) 11825/08 -: 11 :- case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Art. 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Art.226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Art.21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open." (Emphasis supplied) WP(C) 11825/08 -: 12 :- 11. Applying the principles laid down by the Apex Court in the aforesaid decision to the facts of this case, we are of the opinion that the Tribunal was right in dismissing the second application. As held by the Apex Court, when the petitioner withdrew O.A.No.1073 of 1998 without seeking or being granted permission to file a fresh application in respect of the same subject matter, the remedy available to the petitioner under Section 19 of the Administrative Tribunals Act, 1985 should be deemed to have been abandoned by him in respect of the cause of auction based on which earlier application was filed. The Apex Court has in the aforesaid decision held that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of the writ petition also, not on the ground of res judicata but on the ground of public policy. In our opinion, the above said principle applies to applications filed under Section 19 of the Administrative Tribunals Act as well. As the subject matter of the two applications is one and the same, namely, fixation of pay in the revised scale of pay of Rs.550-900, the petitioner who chose to withdraw O.A.No.1073 of 1998 on 8.2.2001 without seeking or WP(C) 11825/08 -: 13 :- being granted liberty to institute a fresh application in respect of the same subject matter, should be deemed to have abandoned the reliefs sought by him therein. The petitioner is therefore not entitled to institute O.A.No.765 of 2001 in regard to the very same subject matter. We accordingly hold that though not for the reason stated by it, the Tribunal was right in dismissing O.A.No.765 of 2001. Further, Ext.P1 order was passed on 30.3.2007. This Writ Petition was presented on 3.4.2008, nearly one year thereafter. Though the petitioner has attempted to explain the long delay in filing this Writ Petition in the affidavit filed in support of this Writ Petition, in the facts and circumstances of the case, we are not persuaded to accept the said explanation. We accordingly hold that there is no merit in the challenge to Ext.P1. The writ petition accordingly fails and it is dismissed inlimine. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 17/5