Mahavir Singh vs Union Of India & Ors.
2013 Latest Caselaw 1880 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of Decision: April 26, 2013

+                                 W.P.(C) 7517/2011

      MAHAVIR SINGH                                         ..... Petitioner
              Represented by:              Mr.Manoj Ranjan Sinha, Advocate

                                  versus

      UNION OF INDIA AND ORS                      ..... Respondents
               Represented by: Ms.Neetu Chauhan, Advocate for
                               Mr.Jagjit Singh, Advocate

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MR. JUSTICE V. KAMESWAR RAO

PRADEEP NANDRAJOG, J. (ORAL)

1. The petitioner was working as a Constable in the RPF when he was medically de-categorized. As a Constable petitioner was receiving salary in the pay scale `3050-4590. His basic pay was `3,500/- per month.

2. Upon being medically de-categorized the petitioner was offered a job which he could perform keeping in view his medical condition. The Department placed him in the pay scale `2550-3200 and fixed his basic pay at `3,200/-.

3. The petitioner had an issue of his last basic pay being `3,500/- per month not been granted to him. The petitioner appears also to be having an issue of he being placed in the pay scale `2550-3200 and not the pay scale `3050-4590.

4. After litigating in the year 1998 and 2002 when OA

No.1720/1998 and OA No.3043/2002 were disposed of, which orders only require the respondents to pass reasoned orders, the reasoned order passed was challenged by the petitioner under OA No.2916/2003 which was disposed of by the order dated December 08, 2004.

5. A most inchoately written order, the Tribunal noted that petitioner was having a grievance of being placed in the pay scale `2550- 3200. The order notes that the petitioner was drawing salary in the pay scale `3050-4590 when he was medically de-categorized. The Tribunal also noted that petitioner's pay was fixed at `3,200/-.

6. The OA was disposed of by the Tribunal recording as under in paragraphs 9 and 10:-

"9. After having carefully considered the rival contention of the parties, we are in agreement with the decision of the full bench decision in GANGA RAM & ORS. vs. U.O.I. & ANR. (1989-1991 full bench of judgments VOL.II) where in it has been held that where the decision of the tribunal has been stayed on merit and is yet to be reversed of modified the decision would become a president. (Sic.) However Para 1313 of the IREM VOL. No.1 make it obligatory upon the respondent that on an absorption of railway employee to an alternative employment on being medically de-categorized to fix his pay at the stage which he was drawing previously in the post held by him As the same was currently fixed earlier by the respondent, the action of lowering down the same is not justifiable is in contravention of the rules.

10. In view of the facts and circumstances of the case, we allow the present O.A. by setting aside the impugned order. Respondents are directed to fix his pay at the stage which he was drawing previously in the post held by him before medical de-categorized from the date it become due. In that event, the applicant would be entitled for all consequential benefits. This direction shall be complied with by the respondent with in period of three months from the date of receipt of this copy of this order. No costs."

[Being a quote, hence the syntax and grammatical errors]

7. Whereas in paragraph 9, the Tribunal has made a reference to para 1313 of IREM Vol. No.I. The Tribunal has made a reference to alternative employment on being medically de-categorized requiring pay to be fixed at the stage which the medically de-categorized employee was drawing previously in the post held. In the concluding sentence of the paragraph the Tribunal has held that the action of lowering down the same is not justifiable because it contravenes the rules.

8. In paragraph 10 the Tribunal directed respondents to fix petitioner's pay at the stage which he was drawing previously in the post held by him.

9. Now, it is not clear whether the last sentence in paragraph 9 of the decision of the Tribunal means that it was the scale of pay which was in the mind of the Tribunal or the last pay drawn.

10. If we read para 9 and 10 co-jointly and in particular para 10 where the final direction was issued the interpretation would lean to mean that the Tribunal had wanted last pay drawn to be protected.

11. The relevance of what we have noted hereinabove is that after the Tribunal decided OA No.2916/2003 the respondents fixed petitioner's last drawn basic pay at `3,500/- by placing him in the pay scale `2500-3200. Since the highest in the scale was `3,200/- and pay had to be protected in sum of `3,500/-, petitioner's basic pay was fixed at `3,200/- to which was added `300 as personal pay to reach the figure of `3,500/-.

12. The petitioner filed OA No.2957/2011 claiming entitlement to be placed in the pay scale `3050-4590/-. The claim has been held to be barred by res judicata.

13. With respect to the finding returned by the Tribunal as per the impugned order dated August 17, 2011, that the claim is barred by res judicata we would only say that the pleadings before the Tribunal in OA No.2957/2011 are most wanting with respect to the plea of res judicata. A plea of res judicata has to be founded by highlighting pleadings in a past litigation and bringing out that on the same cause of action relief claimed in the second proceeding was claimed in the earlier proceeding and was denied. If the claim was not made in the earlier proceedings the bar would be pleaded with reference to constructive res judicata for the reason if all reliefs which flow from a cause of action are not claimed in an earlier litigation and additionally leave of the Court is not obtained to sue for some relief on the same cause of action, second proceedings with respect to a relief arising out of the earlier cause of action would be barred by constructive res judicata.

14. Be that as it may, with respect to the aforesaid facts noted by us, learned counsel for the petitioner would concede that the problem lies in a meaning being assigned to the decision dated December 08, 2004 disposing of OA No.2916/2003. Counsel seeks leave to withdraw the writ petition with right reserved to seek clarification from the Tribunal with respect to its inchoate order dated December 08, 2004. Whether or not the Tribunal meant to hold that petitioner's pay be fixed in the pay scale `3050- 4590 or `2550-3200 would be clarified by the Tribunal.

15. Indeed, we find fuzziness in the order dated December 08, 2004. Petitioner would be at liberty to seek clarification of the said order passed by the Tribunal. We observe that as regards the instant order impugned the petitioner would not be entitled to challenge the impugned order. Meaning thereby if the Tribunal gives a clarification as desired by the

petitioner he would be happy for he would be getting a benefit which he desires. Should the clarification be against the petitioner that it would be curtains down.

16. No costs.

(PRADEEP NANDRAJOG) JUDGE

(V. KAMESWAR RAO) JUDGE

APRIL 26, 2013 mamta