IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2011 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.44128 of 2006(T) (O.A.No.6380 of 2000) M.Bheeman ...Petitioner Vs 1.The District Elementary Educational Officer, Coonoor, The Nilgiris District. 2.The Principal Accountant General (A & E) Tamilnadu, Chennai -18. ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of mandamus, to direct the respondents to refund the sum of Rs.52,393/- recovered from the Petitioner on account of the Pay Fixation ordered by the first Respondent in Na.Ka.No.6134/Aa.2/92 dated 20-01-1997 and grant all consequential benefits to the Petitioner. For Petitioner : Mr.P.Mohanraj for Mr.P.Rajendran For Respondents : Ms.C.Devi, G.A. For R1 Mr.V.Vijayashankar for R2 O R D E R The petitioner was working as an Headmaster in the Panchayat Union Elementary School at Manjoor, Nilgiris District. After his retirement, he filed O.A.No.6380 of 2000 before the Tamil Nadu Administrative Tribunal, seeking for a direction to the respondents to refund a sum of Rs.52,393/- recovered from the Petitioner on account of the Pay Fixation ordered by the first Respondent dated 20.01.1997. 2. The Tribunal ordered notice of motion in the Original Application on 07.09.2000. 3. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.44128 of 2006. 4. It is seen from the records that the petitioner earlier filed O.A.No.2079 of 1992 before the Tribunal along with 9 others and the petitioner, being the 9th petitioner. In that OA, they sought for refixation of pay on par with their juniors by stepping https://hcservices.ecourts.gov.in/hcservices/ up their pay in terms of F.R.22-B. The said OA came to be disposed of by an order dated 10.03.1994. The Tribunal while disposing of the OA observed as follows:- "The relief sought is that the pay should be stepped up on par with that of the juniors. That should be considered only if it is established that when their claims were overlooked they had made representations promptly when any junior who was appointed. In the absence of any such representation, if should be presumed would be that they were not willing to take up the appointment as stated in the reply. The applicants may therefore be given notice indicating the details of when and how they had indicated their unwilling to accept the post of Headmasters earlier. They may also has given opportunity to establish that they had represented when appointments were made earlier, if their juniors. The decision in regard to the claims can be taken based on a finding on these points. In any case the benefits need not extend to any earlier period prior to 17.09.90 when they had represent since the applicants have not diligent in pursuing their claims earlier and has come before the Tribunal only in 4/92. Action should be taken promptly to given them notious with supporting details and the benefit of any to be given to hem could not be on the basis that their pay is fixed on par with that of the juniors, but only the basis that they had been promoted with effect from the date on which the juniors had been promoted." 5. Pursuant to the direction issued by the Tribunal, the respondents by an order dated 20.01.1997 granted the scale of pay attached to the post of Headmaster with effect from 01.06.1988 but the monetary benefit was sought to be given as per the Tribunal's order with effect from 17.09.1990. Subsequently, it was claimed by the petitioner claim that since his juniors were getting higher salary, his salary should be stepped up. The Director of Elementary Education by an order dated 16.04.1998 informed the petitioner that they will have to abide only by the Tribunal's order and the Special Grade and Selection Grade given to the juniors cannot be taken into account. Not satisfied with the said order, the petitioner has filed the OA which stood transferred to this Court. 6. The petitioner having moving the Tribunal earlier for stepping up of his pay with that of his juniors and the claim having been negatived with the clear finding that there was a presumption that they were not willing to take up higher appointment cannot have a second round of litigation. The https://hcservices.ecourts.gov.in/hcservices/ petitioner's grievance which is now projected should have found place in the earlier OA or aggrieved by the findings of the earlier order of the Tribunal, he should have challenged the said order before this Court. The filing of the OA is misconceived. 7. In such circumstances, the underlying principles under Order 2 Rule 2 CPC will squarely apply. In this context, the Supreme Court vide its judgment in Executive Engineer, ZP Engg.Divn. and another v. Digambara Rao and others reported in (2004) 8 SCC 262, in paragraphs 15 and 16 held as follows:- 15. ...The respondents, therefore, while filing the writ petition were bound to lay their whole claim having regard to the provisions contained in Order 2 Rule 2 of the Code of Civil Procedure or the principles analogous thereto. The very basis upon which the writ petitions were based was found to be incorrect. It was, thus, obligatory on the part of the respondents herein to question their orders of termination upon placing correct facts before the High Court. They did not choose to do so. They did not pray for and obtain any leave of the Court to raise the contention about the legality or otherwise of the orders of termination before an appropriate forum. Furthermore, their plea to the effect that they were entitled to continue in service was specifically rejected. In that view of the matter, the proceedings initiated before the Labour Court questioning the orders of termination passed against them by the appellants praying for their reinstatement with full back wages, in our opinion, were wholly misconceived. Such a plea was barred under the principles of res judicata. It is now well settled that the general principle of res judicata applies to an industrial adjudication. 16. In P.Kulothungan this Court held: (SCC p.72. 11) "11. The principle of res judicata operates on the court. It is the courts which are prohibited from tying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the court trying the subsequent proceeding is satisfied that the earlier court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such court. Here the parties to the writ petition filed by the respondent in the Madras High https://hcservices.ecourts.gov.in/hcservices/ Court and the industrial dispute were the same. The cause of action in both was the refusal of the appellant to allow the respondent to rejoin service. The Madras High Court was competent to decide the issue which it did with a reasoned order on merits and after a contested hearing. This was not a case where the earlier proceedings had been disposed of on any technical ground as was the case in Workmen v. Board of Trustees of the Cochin Port Trust and Pujari Bai v. Madan Gopal. The 'lesser relief' of reinstatement which was the subject-matter of the industrial dispute had already been claimed by the respondent in the writ petition. This was refused by the High Court. The correctness of the decision in the writ proceedings has not been challenged by the respondent. The decision was, therefore, final. Having got an adverse order in the writ petition, it was not open to the respondent to reagitate the issue before the Labour Court and the Labour Court was incompetent to entertain the dispute raised by the respondent and redecide the matter in the face of the earlier decision of the High Court in the writ proceedings". 8. In the light of the above, the writ petition stands dismissed. No costs. svki Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The District Elementary Educational Officer, Coonoor, The Nilgiris District. 2.The Principal Accountant General (A & E) Tamilnadu, Chennai -18. + 1 cc to Mr. V. Vijay shankar, Advocate SR No.11834 + 1 cc to Government Pleader, SR No.11875 SR(CO)SR/1.3.2011 W.P.No.44128 of 2006 (O.A.No.6380 of 2000) https://hcservices.ecourts.gov.in/hcservices/