# U.O.I. & Ors v. Sri Kaushalya Nandan Sharan Verma & Anr

- **Citation:** (2023) 9 ILRA 750
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-06
- **Case number:** Writ-A No. 6097 of 2023
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-o-i-ors-v-sri-kaushalya-nandan-sharan-verma-anr-50744
- **Pages:** 11

## Headnote

Service Law
- Central Administrative
Tribunal (Procedure) Rules, 1987 - Rule
17 - Central Civil Services (Pension) Rules,
2021 - Rule 65 - Administrative Tribunal
Act, 1985 - Section 22 (1) - Respondent
No.1, appointed as Guard in 1976, had a
birth date error, corrected in service
records - Before his retirement in 2012,
a
mismatch
was
noticed
-
His
explanation
was
rejected
and
verification was initiated with school -
He received Rs. 3,25,535 as Provident
Fund against a due of Rs. 5,65,405 -
Pension was fixed for 33 years of
service, though he claimed over 35
years - On seeking clarification, he was
informed that calculations were based
on retirement date of 31.01.2010 - Rs.
12,64,300 was ordered to recover as
excess
salary
paid
-
Respondent
approached
Tribunal,
matter
was
remanded with direction to pass fresh
order
-
Challenged
by
petitioner,
dismissed, petitioners paid ₹9,00,990 to
employee in three installments - On
delayed pension and gratuity, Tribunal
awarded GPF interest from 01.02.2012
to 28.06.2018 - Petitioner preferred
Review
and
delay
condonation
application, dismissed - Held, Tribunal
proceedings were misconceived and
barred
by
res
judicata,
wrongly
reopened a settled issue despite final
order dated 11.03.2016 - However, it
had
power
to
condone
delay
-
Impugned order, set aside. (Para 4, 28,
29)

Writ Petition allowed. (E-13)

List of Cases cited:

## Text

750 INDIAN LAW REPORTS ALLAHABAD SERIES
choice of alternatives to a person in want
and compels him to provide labour or
service even though the remuneration
received for it is less than the minimum
wage. Of course, if a person provides
labour or service to another against receipt
of the minimum wage, it would not be
possible to say that the labour or service
provided by him is "forced labour"
because he gets what he is entitled under
law
to
receive.
No
inference
can
reasonably be drawn in such a case that he
is forced to provide labour or service for
the simple reason that he would be
providing labour or service against receipt
of what is lawfully payable to him just like
any other person who is not under the force
of any compulsion. We are therefore of the
view that where a person provides labour or
service to another for remuneration which is
less than the minimum wage, the labour or
service provided by him clearly falls within
the scope and ambit of the words "forced
labour" under Article 23. Such a person
would be entitled to come to the court for
enforcement of his fundamental right under
Article 23 by asking the court to direct
payment of the minimum wage to him so
that the labour or service provided by him
ceases to be "forced labour" and the breach
of Article 23 is remedied. It is therefore clear
that when the petitioners alleged that
minimum wage was not paid to the
workmen employed by the contractors, the
complaint was really in effect and substance
a complaint against violation of the
fundamental right of the workmen under
Article 23."

19. In view of the statutory provisions,
the stand taken by the State Government as
noted above and the fact that the payments
made as remuneration are less than the
minimum wages prescribed even for Class -
IV employees, the action of the State
Government is clearly arbitrary, the rights of
the petitioners under Article 14 of the
Constitution of India have been violated and
the
justification
given
by
the
State
Government for not paying the remuneration
equivalent to that being paid to the Home
Guard Jawans is clearly arbitrary and illegal.
In view thereof, the writ petitions deserve to
be allowed and are accordingly allowed.

20.

Directions
are
issued
for
recomputing the remuneration/allowances
payable to the Jawans of Uttar Pradesh
Prantiya Rakshak Dal at such rates, total of
which 30 days (a month) comes to
minimum of the pay to which a police
personnel in the State Government is
entitled as directed by the Supreme Court
in the case of Grah Rakshak, Home
Guards Welfare Association (supra).

The State Government shall also
pass orders for paying the emoluments/
remunerations to the petitioners at a rate
equivalent to which is being paid to the
Home Guards from time to time.

The State Government shall pass
requisite orders as directed above within a
period of three months from today.
----------
(2023) 9 ILRA 750
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.08.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 6097 of 2023

U.O.I. & Ors. ...Petitioners
Versus
Sri Kaushalya Nandan Sharan Verma &
Anr. ...Respondents
9 All. U.O.I. & Ors. Vs. Sri Kaushalya Nandan Sharan Verma & Anr.
751
Counsel for the Petitioners:
Vinay Tripathi

Counsel for the Respondents:
Ashish Kumar Verma

Service Law
- Central Administrative
Tribunal (Procedure) Rules, 1987 - Rule
17 - Central Civil Services (Pension) Rules,
2021 - Rule 65 - Administrative Tribunal
Act, 1985 - Section 22 (1) - Respondent
No.1, appointed as Guard in 1976, had a
birth date error, corrected in service
records - Before his retirement in 2012,
a
mismatch
was
noticed
-
His
explanation
was
rejected
and
verification was initiated with school -
He received Rs. 3,25,535 as Provident
Fund against a due of Rs. 5,65,405 -
Pension was fixed for 33 years of
service, though he claimed over 35
years - On seeking clarification, he was
informed that calculations were based
on retirement date of 31.01.2010 - Rs.
12,64,300 was ordered to recover as
excess
salary
paid
-
Respondent
approached
Tribunal,
matter
was
remanded with direction to pass fresh
order
-
Challenged
by
petitioner,
dismissed, petitioners paid ₹9,00,990 to
employee in three installments - On
delayed pension and gratuity, Tribunal
awarded GPF interest from 01.02.2012
to 28.06.2018 - Petitioner preferred
Review
and
delay
condonation
application, dismissed - Held, Tribunal
proceedings were misconceived and
barred
by
res
judicata,
wrongly
reopened a settled issue despite final
order dated 11.03.2016 - However, it
had
power
to
condone
delay
-
Impugned order, set aside. (Para 4, 28,
29)

Writ Petition allowed. (E-13)

List of Cases cited:

1. Daryao Vs St. of U.P., AIR 1961 SC 1457

2. Commissioner of Income Tax, Bombay Vs T.P.
Kumaran, JT 1996 (8) 68
3. St. of Har. Vs St. of Punj. & anr., 2004
Supp(2) SCR 849

4. Canara Bank Vs N.G. Subbaraya Setty & anr.,
AIR 2018 SC 3395

5. Surendra Kumar Vs U.O.I.& ors., Writ- A No.-
5564of 2023, decided on 24.08.2023

6. Mysore St. Electricity Board Vs Bangalore
Woollen, Cotton & Silk Mills & ors., AIR 1963 SC
1128

7. Arjun Singh Vs Mohindra Kumar, AIR 1964 SC
993

8. L.R. Ganapathi Thevar (dead) by his legal
representatives Vs Sri Navaneethaswaraswami
Devasthanam, AIR 1969 SC 764

9. Satyadhyan Ghosal & ors. Vs Smt. Deorajin
Debi & anr., AIR 1969 SC 941)

10. Har Pyari Devi Vs Ghanshiam Singh, (1982)
2 SCC 109

11. O.N. Bhatnagar Vs Smt Rukibai Narsindas &
ors., AIR 1982 SC 1097

12. P. Lal Vs U.O.I.& ors., (2003) 3 SCC 393

13. Mathura Prasad Sarjoo Jaiswal & ors. Vs
Dossibai N.B.Jeejeebhoy, AIR 1971 SC 2355

14. St. of West Bengal Vs Hemant Kumar, AIR
1966 SC 1061

15. Employees Welfare Association Vs U.O.I.&
ors., AIR 1990 SC 334

16.
Commissioner
of
Income
Tax
Vs
T.E.Kumaran , 1990 (10) SCC 567

(Delivered by Hon'ble Om Prakash Shukla, J.)

A. INTRODUCTION

(1) The challenge in the instant writ
petition
under
Article
226
of
the
Constitution of India is to the judgment and
order dated 14.10.2022 passed by the
752 INDIAN LAW REPORTS ALLAHABAD SERIES
Central Administrative Tribunal, Lucknow
Bench, Lucknow (hereinafter referred to as
"the
Tribunal"),
whereby
Original
Application No. 332/00515/2018 filed by
the applicant/respondent no.1 herein was
allowed
and
petitioners
herein
were
directed to pay the interest of pension and
gratuity due at the rate of G.P.F. from its
date i.e. 01.02.2012 to 28.06.2018 within
three months from the date of receipt of a
certified copy of the order.

(2) Apparently, in the aforesaid
Original Application No. 332/00515/2018,
the applicant/respondent no.1 has sought
the following reliefs :-

"The original application is being
filed against the illegal, arbitrary and mala
fide actions of the respondents in making
payment of retiral dues without interest
thereon for the period they illegally
withheld the amount of retiral dues despite
the decision of this Hon'ble Tribunal dated
11.3.2016 and the judgment passed by
Hon'ble High Court, Lucknow, by which
writ petition the order dated 11.3.2016 has
been dismissed with cost Rs.5000/-.

The applicant further prayed that
the respondents may be directed to make
payment of interest on delayed payment of
retiral dues @12% per annum from the date
of retirement i.e. 31.1.2012 to the date of
payment i.e. 28.6.2018."

(3) The petitioners have
also
challenged the correctness of the judgment
and order dated 06.07.2023 passed by the
learned
Tribunal,
whereby
Review
Application No. 332/00004/2023 filed by
the petitioners herein seeking review of the
aforesaid judgment/order dated 14.10.2022
(supra) as well as the application seeking to
condone the delay in filing the aforesaid
review application were dismissed on the
ground that the review application has been
filed by the petitioners herein delayed by
close to five months i.e. beyond the period
prescribed under Rule 17 of the Central
Administrative Tribunal (Procedure) Rules,
1987, hence it cannot be entertainable.

B. FACTUAL MATRIX

(4) The following relevant facts
necessary for consideration of this writ
petition are broadly culled out from the
record available before this Court in this
writ petition :-

4.1.

The
respondent
no.1-Sri
Kaushalya
Nandan
Sharan
Verma
(hereinafter referred as "employee") was
appointed on the substantive post of Guard
(Grade-C) in Northern Railway and joined
his services on 13.09.1976. He had passed
his High School Examination from Gandhi
Vidyalaya
Inter
College,
Maarrofpur,
Maryadpur,
District
Mau
(hereinafter
referred to as "School") in the year 1966. In
the educational records, his date of birth
was wrongly mentioned as 01.02.1950,
whereas, as his actual date of birth was
01.02.1952,
therefore,
father
of
the
employee attempted to get the same
corrected. A fresh High School Certificate
was issued by the Examination Board in the
year 1976. In pursuance thereto, he
submitted his original certificates as well as
attested copies of the High School
Certificate issued by the Board in the year
1976. Subsequently, his service records
correctly reflected his date of birth as
01.02.1952 in place of 01.02.2050.

4.2. Apparently, the employee was
due to retire on the basis of his date of birth
on 31.01.2012 and as such, on 25.01.2012,
9 All. U.O.I. & Ors. Vs. Sri Kaushalya Nandan Sharan Verma & Anr.
753
the
Divisional
Railway
Manager
(Personnel), Divisional Office, Northern
Railway, Hazratganj, Lucknow, issued a
letter dated 27.01.2012, stating therein that
the appointment letter placed in the service
records shows his date of birth as
01.02.1950, whereas first page of the
service record shows his date of birth as
01.02.1952 and as such, employee was
once again directed to submit the original
certificate of date of birth etc. In response
thereto, the employee submitted his reply
dated 27.01.2012, mentioning therein that
educational certificates got misplaced/lost.
Thereafter, the employee was served with
letter dated 31.01.2012, stating that his
explanation was not satisfactory and the
matter
would
be
verified
from
the
concerned Institute.

4.3. Thereafter, on 02.02.2012, an
amount of Rs.3,25,535/- against the amount
of Provident Fund was credited to the
account of the employee against total due
of Rs.5,65,405/-. He was served with
Pension Payment Order No. 0112070079
dated 3.8.2012, showing his date of birth as
01.02.1950 and his date of retirement as
31.01.2010. His pension was sanctioned to
Rs.13675/-
per
month
showing
the
qualifying service as 33 years, whereas as
per the employee, he had actually worked
for 35 years 4 months and 8 days.
Thereafter, he moved an application dated
27.02.2012 seeking details of payment
made and withheld. In response thereto, the
employee was provided the details of
payments which were calculated as due to
be deducted taking his date of retirement as
31.01.2010 vide letter dated 03.10.2012.
Further, a recovery of Rs.12,64,300/- was
directed as excess payment of pay w.e.f.
01.02.2010 to 31.01.2012 out of which an
amount
of
Rs.9,78,853/-
has
been
deducted/recovered from the amount of
DCRG and leave encashment and balance
of Rs.2,85,853/- was directed to be
recovered from the pension relief.

4.4. Aggrieved by the aforesaid
actions, the employee preferred Original
Application No. 438 of 2012 : Kaushaiya
Nandan Sharan Verma Vs. Union of India
and others, before the Tribunal.

4.5. The learned Tribunal, vide order
dated 11.03.2016, disposed of the aforesaid
original application No. 438 of 2012 with
the following directions :-

(a) The applicant is entitled to
salary for the period 01.02.2010 to
31.01.2012.

(b) No recovery is to be made
against salary paid for the period of
01.02.2010 to 31.01.2012.

(c) Any recovery made against
salary drawn between 01.02.2010 to
31.01.2012 is to be refunded.

(d) The applicant is entitled to
pensionary benefits as due on his actual
date of retirement i.e. 31.01.2010.

(e) All retiral dues including
PPF, DCRG, commuted pension etc. are to
be paid to the applicant on the basis of
post/pay as held on 31.01.2010.

13. The matter is remanded to the
respondents to pass fresh orders including
revised PPO as per directions given above.
The entire action is to be completed within
four months from the date of receipt of
certified copy of this order."

4.6. The aforesaid judgment/order
dated 11.03.2016 passed by the learned
754 INDIAN LAW REPORTS ALLAHABAD SERIES
Tribunal was challenged by the Union of
India/petitioners herein by filing Writ
Petition No. 16855 of 2016 before this
Court. A Co-ordinate Bench of this Court,
vide judgment/order dated 25.01.2018,
dismissed the writ petition with cost of
Rs.5000/-. Thereafter, on 28.04.2018, the
petitioners had made the payment to the
employee in installments i.e. on 18.04.2018
an amount of Rs.587787/-, on 27.06.2018,
an
amount
of
Rs.285853/-
and
on
28.06.2018, an amount of Rs.27350/- (total
amount of Rs.9,00,990/-).

4.7. Feeling aggrieved by the payment
of the pension and gratuity after two years
and 3 months, the employee preferred
Original Application No.332/00515/2018
before the Tribunal. The learned Tribunal,
on taking note of the facts that the
employee's pension and gratuity fell due on
01.02.2012 but it was paid on 28.06.2018
and also taking note of Rule 65 of CCS
(Pension) Rules, 2021, allowed the original
application vide order dated 14.10.2022
and the petitioners herein was directed to
pay the interest on pension and gratuity due
at the rate of GPF from its due date i.e.
01.02.2012 to 28.06.2018 within three
months from the date of receipt of a
certified copy of the order.

4.8.

The
petitioners,
thereafter,
preferred
Review
Application
No.
332/00004/2023 before the Tribunal, seeking
review of the aforesaid judgment/order dated
14.10.2022, which was delayed by 5 months.
The learned Tribunal, vide judgment/order
dated 06.07.2023, dismissed the review
application as well as application for
condonation of delay in filing review
application.

4.9. Feeling aggrieved by both the
judgments/orders i.e. 14.10.2022 (supra)
and 06.07.2023 (supra), the petitioners
have preferred the instant writ petition.

C. SUBMISSIONS

(5) Heard Shri Vinay Tripathi, learned
Counsel
representing
the
Union
of
India/petitioners and Shri Ashish Kumar
Verma, learned Counsel representing the
respondent no.1/employee.

(6) Assailing the legality of the
impugned judgment/order dated 14.10.2022
passed by the learned Tribunal, learned
Counsel representing the petitioners has
argued that the learned Tribunal has
committed a gross error of law in directing
the payment of interest on the alleged delay
of payment of interest on pension and
gratuity due at the rate of G.P.F. from its
due date i.e. 01.02.2012 to 28.06.2018 vide
impugned
judgment/order
dated
14.10.2022. He submits that relief no.4 as
sought by the employee/respondent no.4 in
earlier Original Application No. 438 of
2012, which was decided by the learned
Tribunal vide order dated 11.03.2016, and
the
sole
relief
sought
by
the
employee/respondent no.1 in subsequent
Original Application No. 332/00515/2018,
are almost identical, therefore, subsequent
Original Application No.332/00515/2018
was barred by res judicata and on this
ground alone, Original Application No.
332/00515/2018 was liable to be dismissed,
however, the learned Tribunal has erred in
allowing the Original Application No.
332/00515/2018 vide impugned order dated
14.10.2022.

(7) To strengthen his submissions,
learned
Counsel
representing
the
petitioners has placed reliance upon the
judgments of the Apex Court in Daryao
Vs. State of U.P. : AIR 1961 SC 1457,
9 All. U.O.I. & Ors. Vs. Sri Kaushalya Nandan Sharan Verma & Anr.
755
Commissioner of Income Tax, Bombay
Vs. T.P. Kumaran : JT 1996 (8) 68, State
of Haryana Vs. State of Punjab and
another : 2004 Supp(2) SCR 849 and
Canara Bank vs. N.G. Subbaraya Setty
and Anr. : AIR 2018 SC 3395.

(8) The learned Counsel representing
the petitioners has next submitted that as
there was apparent error in allowing the
Original Application No. 332/00515/2018
vide order dated 14.10.2022 and as such,
the
petitioners
preferred
Review
Application No. 332/00004/2023, seeking
review of the order dated 14.10.2022, along
with application for condonation of delay,
however, the learned Tribunal dismissed
the
review
application
as
well
as
application for condonation of delay vide
impugned order dated 06.07.2023 only on
the ground that the Tribunal has no power
to condone the delay in filing review
application in view of Rule 17 of the
Central
Administrative
Tribunal
(Procedure) Rules, 1987. He argued that
recently, this Court, vide order dated
24.08.2023 passed in Writ- A No. - 5564 of
2023 : Surendra Kumar Vs. Union of India
and others, has decided the issue as to
whether the learned Tribunal has power to
condone the delay in filing the review
application or not and has held that the
learned Tribunal has power to condone the
delay.
Thus,
the
impugned
order
06.07.2023 is also liable be dismissed.

(9) Per contra, learned Counsel for the
employee/respondent no.1 supports the
impugned judgments/orders and has argued
that Section 22 (1) of the Administrative
Tribunal Act, 1985 provides that the Code
of Civil Procedure, 1908 shall not be
binding in the proceedings before the
Administrative Tribunals but shall be
guided by principles of natural justice,
which is in favour of the respondent
no.1/employee. He submits that as the
Original Application No. 515 of 2018 was
allowed by the learned Tribunal by means
of the impugned order dated 14.10.2022 in
the light of the principles of natural justice
and as such, principle of res judicata has no
play
in
the
proceedings
under
the
Administrative
Tribunals
Act,
1985.
According to him, the plea of res judicata
was not raised by the petitioners before the
learned Tribunal, hence, the petitioners
cannot be allowed the same before this
Court in the present proceedings.

(10) Learned Counsel representing the
respondent
no.1/employee
has
further
argued
that
though
the
respondent
no.1/employee had claimed the interest at
the rate of 18% on the due payments of
pensionary benefits in the earlier Original
Application no. 438 of 2012, but that was
not entertained by the learned Tribunal.
According to him, the petitioners have
made a false presumption that the learned
Tribunal denied the interest on due
payment of pensionary benefits, while in
the order dated 11.03.2016 passed in
Original Application No. 438 of 2012,
nothing has been observed by the learned
Tribunal regarding the claim of the interest.
Therefore, if the claim of the respondent
no.1/employee was unheard, he has every
right to sue through another proceeding for
the same. Thus, there is no illegality or
infirmity in the impugned order dated
14.10.2022 passed by the learned Tribunal.

(11)

So
far
as
impugned
judgment/order
dated
06.07.2023
is
concerned, learned Counsel representing
the
respondent
no.1/employee
has
contended that in view of Rule 17 of the
Central
Administrative
Tribunal
(Procedure) Rules, 1987, the learned
Tribunal has no power to condone the delay
756 INDIAN LAW REPORTS ALLAHABAD SERIES
in filing the review application, hence the
learned Tribunal has rightly dismissed the
review application being time barred vide
impugned order dated 06.07.2023.

D. ANALYSIS & FINDINGS

(12) Having regard to the submissions
made by the parties and going through the
record available before this Court in the
instant writ petition, it is required to be
noted that earlier the employee/ respondent
no.1 preferred Original Application No.
438 of 2012 before the Tribunal, seeking
the following reliefs :-

"1. Quash/set-aside the Pension
Payment Order dated 03.08.2012 and direct
the opposite parties to issue fresh Pension
Payment Order to the applicant fixing his
pension w.e.f. 01.02.2012 considering his
date of retirement as 31.01.2012.

2. Quash/set-aside the letter dated
10.05.2012 issued by the opposite party
No.6, the photo copy of which is contained
in the annexure No.1 to the O.A.

3. Quash/set aside the order, if
any, passed by the opposite party No. 2 to
5, directing for recovery of Rs.12,64,300/-
from the applicant, after summoning its
original from the opposite parties.

4. Direct the opposite parties to
refund the amount of Rs.12,64,300/-
deducted/ recovered from the settlement
dues i.e. amount of Gratuity, Leave
Encashment and arrears of Pension, to the
applicant alongwith the interest @18% p.a.
w.e.f. 01.02.2012 till the date of actual
payment.

5. Pass any other order or direction
which this Hon'ble Tribunal may deem fit
and proper in the circumstances of the case.

6.
Award
the
cost
of
the
application."

(13) Apparently, the learned Tribunal,
vide order dated 11.03.2016, disposed of the
aforesaid Original Application No. 438 of
2016 with the direction as reproduced in
paragraphs No.4.5. hereinabove. This order
dated 11.03.2016 was challenged before this
Court by the Union of India in Writ Petition
No. 16855 (S/B) of 2016. A Co-ordinate
Bench of this Court, vide order dated
25.01.2018, dismissed the writ petition and
upheld the judgment/order dated 11.03.2016
passed by the learned Tribunal.

(14) The employee/respondent no.1 has
not disputed the fact that in compliance of the
aforesaid judgments/orders, the employee/
respondent
no.1
was
paid
sum
of
Rs.6,09,222/-, which was deducted from the
DCRG vide Pay Order No. 491926 dated
28.03.2018; sum of Rs.3,69,225/-, which was
deducted from Leave Encashment, vide Pay
Order No. 491927 dated 28.03.2018; and
Rs.2,85,853/-, which was recovered from the
pension, vide pay order No. 491950 dated
12.06.2018.
However,
thereafter,
the
respondent No.1/applicant preferred Original
Application No. 332/00515/2018, seeking the
following reliefs :-

"(i) This Hon'ble Tribunal may
kindly be pleased to direct the respondents to
make payment of interest @ 12% per annum
to the delayed payment of retiral dues from
the date it was due i.e. 01.02.2012 to
28.6.2018.
9 All. U.O.I. & Ors. Vs. Sri Kaushalya Nandan Sharan Verma & Anr.
757

(ii) To pass such other orders
which are found just fit and proper under
the circumstances of the case.

(iii)
To
allow
the
original
application with cost."

(15) The learned Tribunal, taking note
of the fact that DCRG benefits was due on
01.02.2012 but it was paid to the
employee/respondent no.1 on 28.06.2018
and in the light of Rule 65 of CCS
(Pension) Rules, 2021, disposed of the
aforesaid
original
application
vide
judgment/order dated 14.10.2022, which is
impugned in the instant writ petition.

(16) The petitioners, thereafter,
preferred
Review
Application
No.
332/00004/2023 before the Tribunal, which
was dismissed by the learned Tribunal vide
order dated 06.07.2023, which is also
impugned in the instant writ petition.

(17) In sum and substance, the
question to be answered in this case is (i)
whether
Original
Application
No.
332/00515/2018 was barred by principle of
res judicata; and (ii) whether the learned
Tribunal has power to condone the delay in
filing the review application or not ?

(18) So far as first question, as referred
above, is concerned, res judicata is a doctrine
of law based on equity and public policy that
a party may not be permitted to harass the
other party and waste court's time by reagitating the same issue. A Constitution
Bench of the Apex Court in Mysore State
Electricity Board Vs. Bangalore Woollen,
Cotton & Silk Mills & Ors. : AIR 1963 SC
1128, observed that what becomes res
judicata is a 'matter', which is actually
decided and not the reason which leads the
Court to decide the 'matter'. Therefore, it is
the decision which may not legally be correct
but it becomes binding and the party cannot
be allowed to re-agitate the same issue.

(19) It is settled legal proposition that
even an erroneous decision on a question of
law is res judicata between the parties to it.
The correctness or otherwise of a judicial
decision has no bearing upon the question
whether or not, it operates as res judicata.
(Vide Arjun Singh Vs. Mohindra Kumar :
AIR 1964 SC 993; L.R. Ganapathi Thevar
(dead) by his legal representatives Vs. Sri
Navaneethaswaraswami Devasthanam :
AIR 1969 SC 764; and Satyadhyan Ghosal
& ors. Vs. Smt. Deorajin Debi & anr. : AIR
1969 SC 941).

(20) In Har Pyari Devi Vs.
Ghanshiam Singh: (1982) 2 SCC 109;
O.N.Bhatnagar
Vs.
Smt
Rukibai
Narsindas & Ors.: AIR 1982 SC 1097; and
P. Lal Vs. Union of India & Ors. : (2003) 3
SCC 393, the Apex Court held that it is not
permissible for an authority, Tribunal or a
Court to reopen the finding of fact which has
attained finality in earlier proceedings.

(21) In Mathura Prasad Sarjoo
Jaiswal
&
Ors.
Vs.
Dossibai
N.B.Jeejeebhoy : AIR 1971 SC 2355, the
Apex Court held that while considering the
issue of res judicata, it is not open to the
Court to examine as to whether the findings
recorded earlier were correct or not. As it
becomes binding on attaining finality, the
purpose of applying this doctrine is that the
rights which had already been determined
should not become nugatory, therefore,
parties must be precluded from reopening or
re-contesting the issues which had become
final. The Apex Court observed as under:-

"It is true that in determining
the application of the rule of res judicata
758 INDIAN LAW REPORTS ALLAHABAD SERIES
the Court is not concerned with the
correctness or otherwise of the earlier
judgment. The matter in issue, if it is one
purely of fact, decided in the earlier
proceeding by a competent court must in a
subsequent litigation between the same
parties be regarded as finally decided and
cannot be reopened. A mixed question of
law and fact determined in the earlier,
proceeding between the same parties may
not, for the same reason, be questioned in a
subsequent proceeding between the same
parties. But, where the decision is on a
question law, i.e. the interpretation of a
statute, it will be res judicata in a subsequent
proceedings between the same parties where
the cause of action is the same, for the
expression " the matter in issue" in S. 11,
Code of Civil Procedure, means the right
litigated between the parties, i.e., the facts on
which the right is claimed or denied and the
law applicable to the determination of that
issue. Where, however, the question is one
purely of law and it relates to the jurisdiction
of the Court or a decision of the Court
sanctioning something which is illegal, by
resort to the rule of res judicata a party
affected by the decision will not be precluded
from challenging the validity of the order
under the rule of res judicata, for a rule of
procedure cannot supersede the law of the
land."

(22) In the case of State of West
Bengal Vs. Hemant Kumar : AIR 1966
SC 1061, the Apex Court clearly held that a
wrong
decision
by
a
court
having
jurisdiction is as much binding between the
parties as right one and may be superseded
by other procedure like review, which the
law provides.

(23)

In
Employees
Welfare
Association Vs. Union of India & Ors. :
AIR 1990 SC 334, the Apex Court
observed as under:-

"....if a question of law is related
to the fact in issue, the erroneous decision
on such question of law may operate as res
judicata
between
the
parties
in
subsequently that suit or proceeding if the
cause of action is the same. The Delhi High
Court judgment does not decide any
abstract question of law and there is also no
question of jurisdiction involved. Assuming
that judgment of Delhi High Court are
erroneous, such judgment being on the
question of fact would still operate as res
judicata between the same parties in the
subsequent suit or proceeding over the
same cause of action."

(24) In Commissioner of Income
Tax Vs. T.E.Kumaran : 1990 (10) SCC
567, the Apex Court applying the principle
of res-judicata clearly held:-

"The
claim
is
barred
by
constructive res-judicata under section 11
Explanation IV of the Code of Civil
Procedure which envisages that any matter
which might and ought to have been made
a ground of defence or attack in the former
suit shall be deemed to have been matter
directly
substantially
in
issue
in
a
subsequent suit. Hence when the claim was
made on earlier occasion, he could have or
might have sought and secured decree for
interest. He did not seek so 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 of the Code
of Civil Procedure prohibits the petitioner
to seek remedy separately. In either event
the Original Application is not sustainable."

(25) Keeping in mind the aforesaid
legal proposition, what we find from
perusal of the record available before this
Court in the instant writ petition is that
relief no.4 sought by the respondent
9 All. U.O.I. & Ors. Vs. Sri Kaushalya Nandan Sharan Verma & Anr.
759
no.1/employee in Original Application No.
438 of 2012 (in the first round of litigation)
was for refund of amount of Rs.12,64,300/-
, which was deducted/ recovered from the
settlement dues i.e. amount of gratuity,
leave encashment and arrears of pension to
him along with interest at the rate of 18%
per annum w.e.f. 01.02.2012 till the date of
actual payment, whereas relief sought by
the respondent no.1/employee in Original
Application No. 332/00515/2018 (second
round of litigation) was to make the
payment of interest at the rate of 12% per
annum to the delayed payment of retiral
dues from the date it due i.e. 01.02.2012 to
28.06.2018.

(26) Apparently, the relief no.4
sought by the respondent no.1/employee in
Original Application No. 438 of 2012 was
adjudicated earlier by the learned Tribunal
vide judgment/order dated 11.03.2016, the
learned Tribunal decided the same along
with other reliefs and direction was issued
as enumerated in paragraphs no. 4, 5
hereinabove. This order dated 11.03.2016
was
challenged
by
the
Union
of
India/petitioners in Writ Petition No. 16855
of 2016, which was dismissed by a Coordinate
Bench
of
this
Court
vide
judgment/order dated 25.01.2018, meaning
thereby
the
judgment/order
dated
11.03.2016 (supra) passed by the learned
Tribunal was upheld. The respondent
no.1/employee had never challenged the
order dated 11.03.2016 (supra) passed by
the learned Tribunal, however, it seems that
when the order dated 11.03.2016 was
complied with by the petitioners/Union of
India while paying the retiral benefits to the
respondent
no.1/employee,
then,
the
respondent
no.1/employee
preferred
subsequent
Original
Application
No.
332/00515/2018, seeking to pay interest at
the rate of 12% per annum on delayed
payment of retiral dues from the date it due
i.e. 01.02.2012 to 28.06.2018, which seems
to be equated with the relief as sought in
Original Application No. 438 of 2012 and
decided by the learned Tribunal vide order
dated 11.03.2016.

(27) Admittedly, a finding of fact
having been arrived at Original Application
No. 438 of 2012 was never challenged by
the respondent no.1/employee, therefore,
the legality or otherwise of an identical
issue i.e. to grant interest on delayed
payment of retiral dues, as it appears, could
not have been the subject-matter of
proceedings in the second round of
litigation by filing the Original Application
No. 332/00515/2018. This is for the reason
that if the respondent no.1/employee was
not entitled to receive interest on retiral
dues by reason of the judgment/order dated
11.03.2016 of the learned Tribunal, the
question of interest on retiral dues would
not arise.

(28)

The
respondent/employee
approached the learned Tribunal by filing
Original Application No. 332/00515/2018
with full knowledge that earlier in Original
Application No. 438 of 2012, though relief
of interest was claimed by him, but the
same was not granted by the learned
Tribunal. The respondent no.1/employee,
therefore, while filing Original Application
No. 332/00515 of 2018 (second round of
litigation) was bound to lay his claim
having regard to the provisions contained
in Order II Rule 2 of the Code of Civil
Procedure or the principles analogous
thereto. Respondent no.1/employee did not
pray for and obtain any leave of the learned
Tribunal to raise the contention about the
legality or otherwise of the earlier order
dated 11.03.2016 (supra), which attained
finality. In that view of the matter, the
760 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings initiated before the learned
Tribunal questioning the action of the
petitioners in not granting interest on
delayed payment of retiral dues by the
petitioners, in our opinion, was wholly
misconceived and was barred under the
principle of res judicata and in any case the
prayer sought by the employee in the
second round of litigation before the
learned Tribunal was not as per equity,
good conscience and fair play. Even the
learned Tribunal has failed to appreciate
the said finer point and granted a relief,
which ought not have been granted looking
to the finality of judgment/order dated
11.03.2016. In other words, the issue of
interest on the amount due after the earlier
judgment/order rendered on 11.03.2016
was no more open to be re-agitated to
unsettle a binding decision having attained
finality.

(29) So far as the second question
whether the learned Tribunal has power to
condone the delay in filing the review
application, is concerned, this Court has
recently decided this issue in Writ-A No.
5564 of 2023 : Surendra Kumar Vs. Union
of India and others, decided on 24.08.2023,
holding that the learned Tribunal has power
to condone the delay in filing the review
application. Therefore, the plea of the
respondent no.1/employee in this regard
has no substance.

E. CONCLUSION

(30) For the aforesaid reasons, we are
of the considered view that the impugned
judgments/orders passed by the learned
Tribunal are liable to be set-aside.

(31) In view of the aforesaid, the writ
petition
is
allowed.
The
impugned
judgment/order dated 14.10.2022 passed in
Original Application No. 332/00515/2018
and
the
impugned
judgment
dated
06.07.2023 passed in Review Application
No. 332/00004/2023 are hereby set-aside.

(32) There shall be no order as to
costs.
----------
(2023) 9 ILRA 760
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ-A No. 6719 of 2023

Praveen Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vibhu Rai, Sri Dhananjai Rai

Counsel for the Respondents:
C.S.C., Sri Shad Khan, Sri Suresh Kumar

Held - Compassionate appointment made
under the Dying in Harness Rules is to be
treated
as
a
regular
and
permanent
appointment
from
the
date
of
initial
appointment and cannot be on a consolidated
pay. The impugned order passed by the
District Basic Education Officer rejecting such
claim on the basis of Government Orders
dated 17.06.1996 and 30.01.1996 is contrary
to law laid down by this Court in several
binding precedents including Ravi Karan
Singh Vs St. of U.P., 1999 (3) UPLBEC
2263, Itwari Lal Vs St. of U.P., Writ
Petition No. 5112 (S/S) of 2014, and
others.

The Court reiterated that appointment under
Dying in Harness Rules is made to alleviate
financial hardship and hence must be construed
as a regular appointment from the date of entry
into
service.
Directions
issued
for