Delhi High Court
M. B. Usgaonkar vs Uoi & Ors. on 18 January, 2018
$~R4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on 18.01.2018
+ W.P. (C) 576/2005
M. B. USGAONKAR ..... Appellant
Through: Mr. Sachin Datta, Sr. Adv.
Mr. Vikas Tiwari, Adv.
versus
UOI & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE DEEPA SHARMA
SIDDHARTH MRIDUL, J. (ORAL)
1. The present writ petition assails an order dated 02.09.2004
rendered by the Central Administrative Tribunal, Principal Bench, New
Delhi (hereinafter referred to as „CAT‟), in OA No. 2089/2003, titled as
"M. B. Usgaonkar vs. UOI & Ors.", dismissing the same on the ground
that the petitioner ought to have raised the pleas raised in the present
proceedings, in the earlier round of proceedings instituted on his behalf.
2. Upon a reading of the said impugned order dated 02.09.2004, it
appears that the CAT was impressed by the submissions made on
behalf of the Union of India that the application was barred by the
principle of constructive res judicata because the relief that was being
claimed was also claimed in an earlier OA instituted on behalf of
W.P. (C) 576/2005 Page 1
petitioner being OA No.874/1994. It was therefore, predicated on a
finding that when a particular relief prayed for earlier had not been
adjudicated by the Tribunal at the instance of the petitioners, the only
conclusion that can be drawn is that the same had been refused.
Resultantly, OA No.2089/2003 came to be dismissed as being barred
by principle of constructive res judicata without going into the
substantive issues raised therein.
3. Mr. Sachin Datta, learned senior counsel appearing on behalf of
the petitioner invites our attention to a Letter of Representation dated
23.11.2000 addressed to the Secretary, Ministry of Defence whereby it
had been pointed out that the half pay leave salary of the petitioner had
been wrongly calculated by deducting from his entitlement, pension
which was deductable and was in fact deducted from his
re-employment pay. It was, therefore, urged that the petitioner would
be entitled to cash equivalent to half pay leave for 644 days in this
behalf.
4. On a specific query, it emerges that in the earlier round of
litigation between the parties, the issue revolved around the fixation of
salary and that the issue raised in the Letter of Representation dated
23.11.2000 was in the aftermath of the fixation of the petitioner‟s
salary. It is, therefore, evident that there was no occasion earlier for the
petitioner to agitate his claim in relation to the payment of half pay
salary. Even otherwise, we observe from a perusal of the order dated
11.11.1994 passed by the CAT in OA No. 874/1994 that the issue of
half pay leave had not been raised in that proceedings.
5. We must also observe that it has been candidly admitted by
W.P. (C) 576/2005 Page 2
learned counsel appearing on behalf of Union of India that the issue of
half pay leave had not been raised in the earlier round of litigation
between the parties and became a subject matter of OA No. 2089/2003
for the first time.
6. In view of the foregoing, in our considered view, the CAT fell
into error in rejecting the OA No. 2089/2003 on the solitary ground of
it being barred by the principle of constructive res judicata, without
examining the substantive issues raised therein.
7. We, therefore, have no hesitation in setting aside the impugned
order dated 02.09.2004 and remitting the matter back to the CAT for
hearing on the substantive prayers made in the OA No.2089/2003
which are reproduced hereinunder:-
"(a) Quash and set aside (i) Rule 39 of the Rules, as
well as the O.Ms dated 30.10.82 and
6.4.93/8.4.93/13.4.94 issued by Respondent No.1,
in so far as they permit deduction of (a) DA and (b)
pension of the retiring Government servant from
the cash equivalent of his half pay leave,
(b) Consequent to grant of relief (a) hereinabove, to
restrain the respondent of the deducting, of the
pension of the applicant while computing the cash
equivalent of half pay leave due to him even while
it already stood deducted while fixing his
re-employment pay and
(c) Quash and set aside the impugned letter dated
25.5.01."
8. List before the concerned bench, CAT in the first instance
on 05.02.2018, for further proceedings, in accordance with law.
W.P. (C) 576/2005 Page 3
9. Parties are directed to appear before the CAT on the said
date.
10. Needless to state that in view of the circumstance that the
proceedings instituted on behalf of the petitioner had been pending
since 2003, it is hoped and expected that the CAT shall determine
OA No.2089/2003 as expeditiously as possible and preferably
within a period of 6 months from the date on which it is first listed
before the Bench.
11. The present writ petition is accordingly disposed off.
SIDDHARTH MRIDUL, J
DEEPA SHARMA, J
JANUARY 18, 2018
js
W.P. (C) 576/2005 Page 4
