Dismissed

Onkar Nath Khanna v. State of U.P. and 3 Others

Allahabad HC14 Sept 2018WRIA/19581/2018

Case brief

AI extract

What is this about?

The court dismissed a writ petition seeking payment of interest on arrears of salary. Relying on Supreme Court precedent, the court held that the claim was barred by constructive res judicata under CPC Order 2 Rule 2, as the petitioner failed to seek interest in the earlier writ petition which was disposed of upon payment of the principal arrears.

What did the court decide?

The claim for payment of interest on arrears of salary is dismissed as barred by res judicata.

Onkar Nath Khanna Vs State of U.P. and 3… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 39

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Case :- WRIT - A No. - 19581 of 2018

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Petitioner :- Onkar Nath Khanna Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Punit Khare,Shubham Tandon Counsel for Respondent :- C.S.C.,Neeraj Tripathi

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Hon'ble B. Amit Sthalekar,J. Hon'ble Jayant Banerji,J.

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Heard Sri Punit Khare, learned counsel for the petitioner, Dr. S.B. Singh, learned counsel appearing for respondent no.2,3 and 4 and the learned Standing Counsel appearing for respondent no.1.

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The petitioner in the writ petition is seeking a direction to the respondents to pay interest on the amount of arrears of difference of salary of Rs. 1,23,412/.

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Briefly stated the case of the petitioner is that he retired from service on 31.7.1998 but he was not given proper pay from 1.1.1986 to 23.11.1995. He represented his matter before the Vice Chancellor of the University, whereupon, the Vice Chancellor through his letter dated 11.1.1996 recommended the payment of arrears to the petitioner as per the then applicable revised pay fixation. Thereupon, the Finance Controller of the University vide letter dated 13.2.1996 also recommended payment of Rs. 1,23,412/- but the payment was not made to the petitioner and ultimately he retired from service on 31.7.1998. He, thereafter, filed a writ petition before this Court being Writ-A No. 51453 of 2000 (Onkar Nath Khanna Vs. State of U.P and others) seeking a direction to the respondents to make the payment of arrears amounting to Rs. 1,23,412/ and to grant all consequential benefits for promotion on the post of Assistant Registrar/Deputy Registrar. This writ petition was disposed of by this Court by an order dated 29.8.2017 directing the respondent no.3 therein to examine the matter within a period of three months. The petitioner then represented the matter before the respondents on 18.9.2017 along a certified copy of the order of this Court dated 29.8.2017 and when no action was taken, he filed a Contempt

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Application (Civil) No. 2068 of 2018 (Onkar Nath Khanna Vs. Sri Rattan Lal Hangloo, Vice Chancellor, University of Allahabad) . At the time of consideration of contempt petition, the counsel appearing for the opposite party handed over a cheque of Rs. 1,23,412/ to Sri Punit Khare, learned counsel appearing for the petitioner. The order of the Court dated 10.5.2018 passed in the said contempt petition clearly mentioned that Sri Khare states that nothing further survives in the petition which shall consequently stand disposed of. The order of the Court dated 10.5.2018 reads as under:

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"Shri Manoj Kumar learned counsel appearing for the opposite party has handed over a cheque in the amount of Rs.1,23,412/- which has been duly received and acknowledged by Shri Punit Khare, learned counsel for the applicant. Shri Khare states that nothing further survives on this petition which shall consequently stand disposed of."

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Now, this petition has been filed by the petitioner with the prayer for a direction to the respondents to pay interest on the arrears of difference of salary i.e. Rs. 1,23,412/.

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Learned counsel for the respondents on the other hand submitted that since the relief for payment of interest had never been claimed by the petitioner when he filed Writ Petition No. 51453 of 2000 and besides in the contempt petition also the counsel for the petitioner had clearly stated that after payment of cheque of Rs. 1,23,412/, nothing further survives in the petition, the relief for payment of interest claimed in the present writ petition would be barred by principle of res judicata contemplated under Order 2 Rule 2 read with Section 11 of the Code of Civil Procedure.

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He has further placed reliance on a judgement of the Supreme Court reported in 1996 (10) SCC 561; Commissioner of Income Tax, Bombay Vs. T.P. Kumaran , wherein, an identical situation had arisen and the subsequent claim of interest had been turned down by the Supreme Court on the ground that when respondents therein had made the claim on the earlier occasion, he should have or might have sought and secured a decree for interest. He did not seek so, therefore, it operates as res judicata. The short judgment of the

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Supreme Court is reproduced in its entirety as under:-

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"[1] Leave granted.

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[2] We have heard learned counsel for the parties.

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[3] This appeal by special leave arises against an order of the central Administrative Tribunal, Ernnakulam made on 16/8/1994 in OA No. 2026 of 1993. The admitted position is that while the respondent was working as Income Tax Officer, he was dismissed from service. He laid a suit against the order of dismissal. The suit came to be decreed and he was consequently reinstated. Since the arrears were not paid, he filed a writ petition in the High Court. The High Court by order dated 16/8/1982 directed the appellant to pay all the arrears. That order became final. Consequently, arrears came to be paid. Then the respondent filed an OA claiming interest at 18% per annum. The Administrative Tribunal in the impugned order directed the payment of interest. Thus, this appeal by special leave.

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[4] The tribunal has committed a gross error of law in directing the payment. The claim is barred by constructive res judicata under Section 11. Explanation IV, Civil Procedure Code which envisages that any matter which might and ought to have been made ground of defence or attack in a former suit, shall be deemed to have been a matter directly and substantially in issue in a subsequent suit. hence when the claim was made on earlier occasion, he should have or might have sought and secured decree for interest. He did not seek to and, therefore, it operates as res judicata. Even otherwise, when he filed a suit and specifically did not claim the same. Order 2 rule 2 Civil Procedure Code prohibits the petitioner to seek the remedy separately. In either event, the OA is not sustainable.

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[5] The appeal is accordingly allowed. No costs."

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We find that the facts of the present case are quite similar to that of the case of T.P. Kumaran inasmuch as in the present case earlier the petitioner had never claimed interest on the arrears of difference of salary when he filed earlier Writ Petition No. 51453 of 2000 and even in the contempt petition before this Court, the counsel for the petitioner on receipt of cheque of Rs. 1,23,412/ had clearly stated that nothing further survives in the petition.

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The Order 2 Rule 2 of C.P.C. reads as under:

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“ 2. Suit to include the whole claim - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to

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make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

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(2) Relinquishment of part of claim - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

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(3) Omission to sue for one of several reliefs - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

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The principle of res judicata and constructive res judicata which are applicable to a suit are also applicable to writ proceedings. The Supreme court in Daryao and others Vs. State of U.P and others; AIR 1961 SC 1367 has held as under:-

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“But, is the rule of res judicata merely a technical rule or is it based on high public policy. If the rule of res judicta itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt, some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is (1) [1950] S.C.R. 594 founded on consideration of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts' of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.”

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In this view of the matter, we find that the relief for payment of interest on the amount of Rs. 1,23,412/ as claimed by the petitioner in the present writ petition is clearly barred by principles of constructive res judicata as contemplated under Order 2 Rule 2 C.P.C.

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Therefore, on the facts of the case and the law laid down by the Supreme Court, the writ petition lacks merit and is accordingly dismissed . Order Date :- 14.9.2018 sfa/

Onkar Nath Khanna v. State of U.P. and 3 Others

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Onkar Nath Khanna v. State of U.P. and 3 Others

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