Union Of India vs Sh. R.K. Gupta
2009 Latest Caselaw 4036 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               W.P. (C.) No.6563/2007

%                            Date of Decision: 07.10.2009

UNION OF INDIA                                                    .... Petitioner

                            Through: Mr. D.S. Mahendru, Advocate.

                                      Versus

SH. R.K. GUPTA                                                 .... Respondent

                            Through: Mr. G.S. Lobana, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether reporters of Local papers may be                      Yes
       allowed to see the judgment?
2.     To be referred to the reporter or not?                         No
3.     Whether the judgment should be reported in                     No
       the Digest?


ANIL KUMAR, J.

*

1. The petitioner, Union of India, has challenged the order dated

26.04.2007 passed by the Central Administrative Tribunal, Principal

Bench in O.A. No. 1268/2006 titled as Sh. R.K. Gupta (Retd.) Vs. Union

of India awarding interest at the rate of 8% per annum on arrears of

retiral/pensionary benefits for the period when the respondent was

under suspension.

2. The respondent was a Postal Assistant with Delhi Postal Circle

and he was suspended while in service on account of a criminal case

pending against him.

3. On his retirement on 01.03.1996 he was paid only provisional

pension on 24.11.1998 and other retiral benefits like leave encashment,

gratuity etc. were withheld. Aggrieved by non-payment of leave

encashment and gratuity and other benefits along with interest at the

rate of 12 per cent per annum, the respondent filed O.A. No. 1832/98.

The petition of the respondent was allowed on 06.04.1999 with the

following directions:

"4. In so far as the claim of interest is concerned, representation dated 10.7.1998 (Annexure A-VI) indicates that pension was revised in terms of Government of India order dated 27.10.1997, and pay was also revised pursuant to the Government orders on the recommendations of the 5th Pay Commission which were also issued around that time. Some time would naturally have been required for the authorities charged with preparing the bills and releasing the aforesaid amounts to applicant, and having regard to the same, it would be reasonable to direct respondents to pay applicant interest @ 12% p.a. on the sums release on 1.1.1998 till the date of actual payment. This should be calculated and paid to applicant within three months from the date of receipt of a copy of this order."

4. After the petition for release of gratuity and leave encashment was

allowed, the same were paid on 08.06.1999. Thereafter arrears of pay

and allowances were paid on 08.07.1999 with 12 per cent interest.

5. Later on the respondent was acquitted in the criminal case which

was pending against him, on 29.11.2003. However, the period from

26.07.1985 to 04.05.1988 during which he was under suspension was

not treated as a period spent on duty and an order dated 28.05.2005

was passed declining to the petitioner emoluments during the said

period of suspension.

6. The respondent, therefore, filed yet another O.A. No. 1706/2004

challenging the order dated 28.05.2004 whereby his suspension period

was not treated as period spent on duty. The petition was allowed by

order dated 11.02.2005 and the order dated 28.05.2005 was set aside

and the respondent was directed to treat the respondent on duty from

26.07.1985 to 04.05.1988 and he was also awarded all consequential

benefits including retiral benefits for the said period.

7. According to the respondent despite order dated 11th February,

2005 all the amounts due to him were not paid. Therefore an M.A.

2027/05 was filed by the petitioner seeking implementation of order

dated 11th February, 2005. In the said miscellaneous application, the

respondent categorically claimed interest on his retiral benefits under

sub-rule (1) and (2) of Rule 68 of CCS (Pension) Rules, 1972 for the said

period when he was under suspension.

8. After hearing the contentions of the parties, the plea of the

respondent to grant interest was declined by the tribunal by order dated

27.02.2006 in M.A. No. 2027/05. While declining the prayer of the

respondent for interest, the tribunal had held as under:

"At this stage, the Tribunal will not go behind the order of this Tribunal dated 11.2.2005 and will not entertain any claim of the applicant which ought to have been pleaded in the original OA and which has not been granted by the Tribunal. According to the applicant, the consequential benefits which are payable in accordance with the order will also include the amount of interest payable. We are afraid the executing court cannot modify the order of this Tribunal and extend the benefit which was not specifically granted while disposing of the OA. The order of the Tribunal is very clear. There was no direction that interest would also be payable on the amount due in the order of the Tribunal.

The dictionary meaning of the word „consequential‟ are „following‟ as an effect „immediate‟ or „eventual‟ or as a „logical inference‟. The payment of interest on pay and allowances is not a necessary effect and eventual to the main order of payment of pay and allowances for suspension period. Interest, as such, is not a consequential benefit which flows from the main direction."

9. The respondent, thereafter, filed yet another O.A. being O.A. No.

1268/06 claiming interest on his retiral benefits which were awarded by

order dated 11th February, 2005 in O.A 1706 OF 2004.

10. By the impugned order the tribunal has allowed the relief of

interest to the respondent, rejecting the plea of the petitioner that the

relief claimed by the respondent is barred by the principle of

constructive res judicata. The petitioner had categorically contended

that since the relief of interest was available to the respondent in O.A.

No. 1706/04 and should have been claimed by him, therefore, the

similar plea could not be taken by the respondent by filing another

petition. The petitioner had also relied on Forward Construction Co.

and Others Vs. Prabhat Mandal (Regd) Andheri and Others, (1986)

1 SCC 100 in support of his contention that the relief of the respondent

would be barred under the principle of constructive res judicata and the

plea would also be barred as it was categorically denied by the tribunal

in M.A. No. 2027/05 by order dated 27.02.2006.

11. We have heard the Learned counsel for the parties and have also

perused the petition, counter affidavit and the documents filed by the

parties. This cannot be disputed that while challenging the order dated

28th May, 2004 whereby the emoluments for the period of suspension

were denied to the respondent, the respondent was entitled to claim

interest on the said emoluments. It appears that the respondent did not

claim the interest specifically on the emoluments for the period he was

under suspension. The tribunal, therefore, though directed to pay

consequential benefits for the period 26th July, 1085 to 5th May, 1988

but did not award interests on the consequential benefits for the said

period. In the application filed by the respondent later on, as the

amounts due to the respondent were not paid, also claiming interest on

the amounts, it was held that the Tribunal while executing the order

cannot grant interest.

12. The respondent did not challenge the order dated 27th February,

2006 declining interest on the amounts which had become due

pursuant to order dated 11th February, 2005 nor sought review of order

dated 11th February, 2005 whereby the petitioners were directed to treat

the suspension period as the period on duty for all purposes and

awarding all consequential benefits including retiral benefits but not

interest as it was not claimed by the respondent.

13. The tribunal has not considered the plea of the petitioner that

the claim of the respondent for interest is barred by the principle of

constructive res judicata. No reason has been given as to why the claim

of interest by the respondent in the Original Application in question is

not barred by constructive res judicata. What is held by the tribunal is

that after hearing arguments of both sides, the tribunal agrees with the

arguments placed by the Counsel for the respondent and the Tribunal

has relied on W.P. Bhatia Vs Union of India, WP(C) 4931 OF 2002. In

the case relied on by the tribunal for awarding interests, the plea of

claim being barred by constructive res judicata was not even involved.

It is merely an example of an instance where the claim of interest had

been allowed by the Court. The Tribunal has not considered as to why

the ratio of Forward Construction Co. & ors (supra), relied on by the

petitioner, will not be applicable or relevant.

14. After hearing the learned counsel for the parties we are unable to

agree with the decision of the Tribunal. As aforesaid, the Tribunal has

not even discussed as to why the principle of constructive res judicata

shall not be applicable in the present facts and circumstances, when

the respondent was entitled to claim interest in the earlier petition filed

by the petitioner and where it was not sought specifically. A relief which

was available and which could be sought by the respondent and which

had not been sought by him, could not be claimed by the respondent by

filing another petition later on. Even assuming that the respondent was

justified in claiming interest as claimed by him, in the face of the order

dated 27.02.2006 passed in M.A. 2027/2005, which was allowed to

attain finality, the respondent could not have maintained yet another

O.A. to again claim the same relief.

15. The Supreme Court in Forward Construction Co. (supra) had

held that an adjudication is conclusive and final not only as to the

actual matter determined but as to every other matter which the parties

might and ought to have litigated and have it decided as incidental to or

essentially connected with the subject matter of the litigation and every

matter coming within the legitimate purview of the original action both

in respect of the matters of claim or defense. Consequently, the

adjudication by the Tribunal in O.A. 1706 of 2004 and M.A. 2027/2005

shall also be conclusive about the claim of interest by the respondent

and it could not have been claimed afresh by the respondent by filing

another petition being O.A no.1268 of 2007, which was allowed by order

dated 26th April, 2007, which is impugned by the petitioner.

16. The plea of the learned counsel for the respondent that since the

respondent is entitled for interest under Rule 68 of CCS (Pension) Rules

1972, therefore, the interest ought to have been awarded and it will not

be barred under the principle of constructive res judicata or that the

principle of constructive res judicata shall not be applicable to such a

case is not acceptable and is rejected. The other plea of the learned

counsel for the respondent that since the respondent was under

suspension for a fairly long period and therefore he should have been

awarded interest, also cannot be accepted in the present facts and

circumstances. No exceptions can be carved out to principle of

constructive res judicata on the grounds as has been alleged by the

respondent.

17. Consequently, the writ petition is allowed and the impugned order

dated 26.04.2007 passed in O.A. No. 1268/2006 titled Shri R.K. Gupta

(Retd.) Vs. Union of India and Others awarding interest at the rate of 8

per cent on the retiral/pensionary benefits to the respondent is set

aside. The respondent shall not be entitled for any other interest at the

rate of 8 per cent or at any other rates in the facts and circumstances.

However, in the facts and circumstances the parties are left to bear

their costs.

ANIL KUMAR, J.

VIPIN SANGHI, J.

OCTOBER 07, 2009 dp