Bombay High Court
Union Of India & Another vs Madhaoringh S/O Ratansingh ... on 19 August, 2016
Bench: V.A. Naik
1 wp2375.05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2375 OF 2005
1) Union of India, through the
Director General, Geological
Survey of India, 27, J.L. Nehru
Road, Kolkata - 700 016.
2) Deputy Director General,
Geological Survey of India,
Central Region, Seminary Hills,
Nagpur - 440 006. ... Petitioners
- Versus -
1) Shri Madhaosingh s/o Ratansingh
Suryawanshi, r/o Plot No.7,
Allied Colony, Anant Nagar,
Nagpur - 440 013.
2) Central Administrative Tribunal,
Mumbai, Bench at Nagpur,
CGO Complex, Seminary Hills,
Nagpur - 440 006. ... Respondents
-----------------
Mrs. M.R. Chandurkar, Advocate for the petitioners.
----------------
CORAM : SMT. VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
DATED : AUGUST 19, 2016
ORAL JUDGMENT (PER SMT. VASANTI A NAIK
, J.) :
By this writ petition, the petitioners challenge the order of the
Central Administrative Tribunal dated 30/1/2004, partly allowing the
2 wp2375.05
original application filed by the respondent no.1 and directing the
petitioners to pay interest on the delayed payment of gratuity from
1/9/1996 to 23/10/1999 on the amount of Rs.1,36,057/- and from
1/9/1996 to 18/4/2002 on the amount of Rs.11,725/-.
The respondent no.1 was an employee of the petitioners and
he had left for Bhutan on 10/7/1993. It was the case of respondent no.1
that though his tenure at Bhutan would have expired on 31/5/1994, the
petitioners illegally called him back in the midst of the tenure because of
the pendency of the criminal case against him, that was filed by one
Kamla Chawla. The respondent no.1 retired on attaining the age of
superannuation on 31/5/1996. After the respondent no.1 retired, he
filed an original application seeking a direction against the petitioners for
granting him promotion with a deemed date as he was acquitted in the
criminal case. The said original application was allowed and the
petitioners were directed to consider the claim of the respondent no.1 for
promotion. The petitioners granted promotion to the respondent no.1
with effect from 7/7/1993, but the same was granted on notional basis
and the respondent no.1 was not held entitled to the monetary benefits
flowing therefrom. The respondent no.1, therefore, filed Original
Application No.2064/2000 challenging the said order. That original
application was allowed and the petitioners were directed to grant the
actual benefits of promotion to the respondent no.1. After respondent
3 wp2375.05
no.1 secured the said benefits, he filed the third original application, with
which we are concerned, being Original Application No. 2118/2002,
seeking a direction against the petitioners to pay an amount of
Rs.3,35,685/- towards interest on difference of pay and allowances,
interest on delayed payment of gratuity, interest on commuted value of
pension and arrears of Bhutan Compensatory Allowance, which was not
paid to him by curtailing his tenure at Bhutan. The Tribunal, on an
appreciation of the material on record, partly allowed the original
application and directed the petitioners to pay interest to the respondent
no.1 on the delayed payment of gratuity as referred to hereinabove. All
other claims of the respondent no.1 were denied by the Tribunal. The
petitioners have approached this Court, challenging the part of the order
of the Tribunal that directs the petitioners to pay interest on the delayed
payment of gratuity.
Mrs. Chandurkar, the learned Counsel for the petitioners,
submits that the Tribunal was not justified in directing the petitioners to
pay interest on the delayed payment of gratuity from 1/9/1996 to
23/10/1999 as the said amount was not claimed by the respondent no.1
in the second original application filed by him. It is stated that if the
gratuity was belatedly paid to the respondent no.1, he should have made a
claim for payment of gratuity along with interest in the second original
application. It is submitted that it is well settled that a relief that is not
4 wp2375.05
claimed in the initial proceedings despite the accrual of the cause of action
cannot be granted in the subsequent proceedings. It is further stated that
if it was the case of the respondent no.1 that the gratuity was not paid to
him and he was also entitled to interest thereon, he should have asked for
the said benefit at least in the second original application, bearing
No.2064/2000.
On hearing the learned Counsel for the petitioners and on a
perusal of the impugned order, it appears that the Tribunal was not
justified in directing the petitioners to pay interest on the delayed
payment of amount of gratuity from 1/9/1996 till 23/10/1999 on the
amount of Rs.1,36,057/-. If the gratuity was belatedly paid to the
respondent no.1 on 23/10/1999 to the extent of Rs.1,36,057, he should
have made a grievance about non payment of interest on the delayed
payment of gratuity in Original Application No.2064/2000. The said
claim was, however, not made by the respondent no.1 in the said original
application. It is well settled that a claim that is not made despite accrual
of the cause of action is deemed to have been given up. The claim of
respondent no.1 for interest on the delayed payment of gratuity was not
maintainable in Original Application No. 2118/2002, on the principles
that are akin to the principles of constructive res judicata. We find much
force in the submission made on behalf of the petitioners that the
respondent no.1 could not have filed the third original application for
5 wp2375.05
seeking interest on the delayed payment of gratuity.
Hence, for the aforesaid reasons, the writ petition is allowed.
The impugned order is quashed and set aside. The original application
filed by the respondent no.1 stands dismissed.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
khj
6 wp2375.05
CERTIFICATE
I certify that this order uploaded is a true and correct copy
of original signed order.
Uploaded by : Uploaded on :
Kamal H. Jeswani 23/08/2016
Private Secretary
