Manoharan T.C. v. The Accountant General, Office of the Accountant General (A&E), Kerala; Chief Engineer, Irrigation and Administration, Nandavanam, Thiruvananthapuram; Chief Engineer, Office of the Chief Engineer, Civil Station, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 29TH DAY OF MARCH 2017/8TH CHAITHRA, 1939** **OP(KAT)No. 5 of 2015 (Z) --------------------------** **AGAINST THE ORDER IN TA 5255/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 26-09-2014** **PETITIONER :- ------------MANOHARAN T.C., S/O. T.K.CHATHUKUTTY, AGED 69, “USHAS”, CO-OPERATIVE ROAD, CHEMBUKAVU, THRISSUR-680 020.** **BY ADVS.SRI.P.B.KRISHNAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN SRI.NEELAKANDAN P.M. SRI.K.JAYAKUMAR, SENIOR** **RESPONDENTS :- -------------1. THE ACCOUNTANT GENERAL, OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM, PIN - 695 001. 2. THE CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, NANDAVANAM, THIRUVANANTHAPURAM, PIN - 695 033. 3. THE CHIEF ENGINEER, OFFICE OF THE CHIEF ENGINEER, CIVIL STATION, KOZHIKODE - 673 020. BY SRI.PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 29-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT)No. 5 of 2015 (Z)** ## **--------------------------** ## **APPENDIX** **PETITIONER'S EXHIBITS :-** **-----------------------** **ANNEXURE 1 : TRUE COPY OF THE WP(C) NO.9873 OF 2011 DATED 28.3.2011 FILED BEFORE THIS HON'BLE COURT WHICH WAS TRANSFERRED TO THE KERALA ADMINISTRATIVE TRIBUNAL AND RENUMBERED AS TA-5255 OF 2012.** **ANNEUXRE 2 : DATED 26.9.2014, TRUE COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL IN TA-5255 OF 2012.** **RESPONDENT(S)' EXHIBITS :- NIL** **-----------------------** ## **//TRUE COPY//** **P.A. TO JUDGE** **rkj** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------O.P.(KAT)No.5 of 2015 ------------------------------------------------Dated this the 29[th] day of March, 2017** ## **JUDGMENT** ## **Anil K.Narendran, J.** This Original Petition arises out of Annexure 2 order passed by the Kerala Administrative Tribunal, Thiruvananthapuram Bench dated 26.9.2014 in T.A.No.5255 of 2012. On 28.2.1999, the petitioner retired from service on superannuation, while working as Assistant Executive Engineer, Pazhassi Irrigation Project Sub Division at Kuthuparamba in Kannur District. On account of delayed payment of the Death Cum Retirement Gratuity (for brevity, 'the DCRG'), the petitioner approached this Court in W.P.(C)No.9873 of 2011, seeking an order directing the respondents to pay interest for the DCRG at the rate of 12% per annum from 28.2.1999 till the date of payment. After the constitution of the Kerala Administrative Tribunal the said Writ Petition was transferred to the Tribunal and renumbered as T.A.No.5255 of 2012. 2. The Tribunal, after considering the rival contentions, dismissed the Transfer Application by Annexure 2 order dated 26.9.2014, stating that, the petitioner was paid the DCRG immediately after Ext.P2 judgment of this Court dated 23.12.2009 in W.P.(C)No.6047 of 2009. O.P.(KAT)No.5 of 2015 2 There was no delay on the part of the Government in paying the DCRG and the request for payment of interest therefore cannot be accepted. Feeling aggrieved by Annexure 2 order passed by the Tribunal the petitioner/applicant is before this Court in this Original Petition. 3. We heard the learned Senior Counsel for the petitioner/applicant and also the learned Government Pleader appearing for the respondents. 4. The pleadings and materials on record would show that, on 28.2.1999 the petitioner retired from service on superannuation, while working as Assistant Executive Engineer, Pazhassi Irrigation Project Sub Division at Kuthuparamba. The terminal benefits including the DCRG were not disbursed on retirement, on account of pendency of a Vigilance Enquiry, which prompted the petitioner to approach this Court in W.P.(C). No.6047 of 2009 seeking the following reliefs; - “(i) issue a writ of mandamus or any other appropriate writ, order or direction directing respondent No.2 to issue N.L.C. to the petitioner for enabling him to collect the DCRG due to him; - (ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to disburse the DCRG due to the petitioner with interest at the rate of 12% per annum from 28.2.1999 till the date of payment; - (iii) issue a writ of mandamus or any other writ, order or direction directing respondent No.2 to dispose of Ext.P3 within a time O.P.(KAT)No.5 of 2015 3 frame this Hon'ble Court may deem to fix; - (iv) grant the petitioner such other appropriate reliefs that this Hon'ble Court may deem fit to grant; and - (v) award the petitioner the costs of this writ petition.” 5. This Court, after taking note of the contentions of the respondents that non-disbursement of the DCRG is on account of the pendency of a Vigilance Enquiry, disposed of the said Writ Petition by Ext.P2 judgment dated 23.12.2009, by directing the respondents to release the DCRG due to the petitioner within six weeks from the date of receipt of a copy of the judgment. It was made clear that, the direction contained in Ext.P2 judgment shall be without prejudice to the right of the respondents to take action for recovering any amount that is due from the petitioner in accordance with law. 6. Pursuant to the direction contained in Ext.P2 judgment, the DCRG amount was released to the petitioner through the District Treasury, Thrissur. The said fact is not in dispute. After such release of the DCRG amount, the petitioner approached this Court in W.P.(C)No.9873 of 2011 seeking a writ of mandamus commanding the respondents to pay him interest for the DCRG amount at the rate of 12% per annum from 28.2.1999 till the date of payment, which Writ Petition was later transferred and renumbered as T.A.No.5255 of 2012 on the file of the O.P.(KAT)No.5 of 2015 4 Tribunal. 7. As we have already noticed, in W.P.(C)No.9873 of 2011, the petitioner sought for a writ of mandamus commanding the respondents to disburse the DCRG due to him together with interest at the rate of 12% per annum from 28.2.1999 till the date of payment. However, the said relief was not granted, while this Court disposed of the said Writ Petition by Ext.P2 judgment, by directing the respondents to disburse the DCRG due to him within six weeks from the date of receipt of a copy of that judgment, without prejudice to their right to take action for recovering any amount that is due from him in accordance with law. If the petitioner had a grievance that any of his contentions in W.P.(C)No.9873 of 2011 have not been adverted to by this Court in Ext.P2 judgment, his remedy was to pursue the matter in a review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 and not a fresh Writ Petition seeking a writ of mandamus commanding the respondents to pay him interest for the DCRG amount at the rate of 12% per annum from 28.2.1999 till the date of payment. 8. In **Competent Authority, SAFEMA v. M.H. Hameed and another (2009 (3) KHC 295)** a Division Bench of this Court held that, the principles of res judicata would apply to writ proceedings as well. The grounds which a petitioner might and ought to have taken, if not taken at O.P.(KAT)No.5 of 2015 5 the first opportunity, cannot be pursued afresh in another proceedings. An adjudication is final and conclusive not only in respect of the subject matter adjudicated and determined, but as to every other matter which the parties might, could and ought to have taken and invited decision as incidental to or essentially connected therewith, in view of Explanation IV to Section 11 of the Code of Civil Procedure, 1908. In case a party had already taken up the contentions and if aggrieved by the judgment the remedy is to pursue the matter in appeal. If a party has a grievance that any of his contentions have not been adverted to in the judgment, the remedy is to pursue the matter in a review. Once a judgment is delivered on a cause of action, the cause of action which resulted in the judgment must lose its identity, vitality and litigious relevance. The same cannot survive the judgment and give rise to another cause of action on the same set of facts. Para.12 of the judgment reads thus; “12. The principles of res judicata would apply to writ proceedings as well. The grounds which a petitioner might and ought to have taken, if not taken at the first opportunity, cannot be pursued afresh in another proceedings. An adjudication is final and conclusive not only in respect of the subject matter adjudicated and determined, but as to every other matter which the parties might, could and ought to have taken and invited decision as incidental to or essentially connected therewith, in view of Explanation IV to Section 11 of CPC. This principle applies to both claim and defence also. In O.P.(KAT)No.5 of 2015 6 case a party had already taken up the contentions and if aggrieved by the judgment the remedy is to pursue the matter in appeal. If a party has a grievance that any of his contentions have not been adverted to in the judgment, the remedy is to pursue the matter in a review. According to Sir William Wade 'One special variety of estoppel is res judicata. This results from the rule which prevents the parties to a judicial determination from litigating the same question over again, even though the determination is demonstrably wrong. Except in proceedings by way of appeal, the parties bound by the judgment are estopped from questioning it.' Referring to prerogative remedies, the author would hold the position that '... the Court may refuse to entertain questions which were or could have been litigated in earlier proceedings, when this would be an abuse of legal process...' **(Administrative Law by H.W.R. Wade & C.F. Forsyth, 9[th] Edition, Page 243-249)** . To obtain a second judgment by the same Court on the same cause of action cannot also be permitted lest it should give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. Once a judgment is delivered on a cause of action, the cause of action which resulted in the judgment must lose its identity, vitality and litigious relevance. The same cannot survive the judgment and give rise to another cause of action on the same set of facts, as held by the Supreme Court in **State of U.P. v. Nawab Hussain (AIR 1977 SC 1680 : 1977 (2) SCC 806)** . To quote: “The principle of estoppel per rem judicatum is a rule of evidence. It may be said to be 'the broader rule of evidence which prohibits the reassertion of a cause of action'. This doctrine is based on two theories: (i) the O.P.(KAT)No.5 of 2015 7 finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the Courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata. But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process. This is another and an equally necessary and efficacious aspect of the same principle, for it helps O.P.(KAT)No.5 of 2015 8 in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has sometimes been referred to as constructive res judicata which, in reality, is an aspect or amplification of the general principle.” The principle of res judicata would apply to writ proceedings as well, being a general principle. **Forward Construction Co. and others v. Prabhat Mandal (Regd.) Andheri (AIR 1986 SC 391 : 1986** **(1) SCC 100)** is a case where after the dismissal of an earlier writ petition on the same cause of action, another writ petition was filed, but on a different ground. Dismissing the same the Supreme Court held: “In view of Section 11, Explanation IV it could not be said that the earlier judgment would not operate as res judicata as one of the grounds taken in the subsequent petition was conspicuous by its absence in the earlier petition. 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 had 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 defence.” 9. In view of the law laid down in the decisions referred to supra, the second Writ Petition filed by the petitioner/applicant, seeking a writ of mandamus commanding the respondents to pay him interest for the DCRG O.P.(KAT)No.5 of 2015 9 amount at the rate of 12% per annum from 28.2.1999 till the date of payment, is barred by res judicata. As such, we find no valid reason to interfere with Annexure 2 order of the Tribunal dated 26.9.2014 in T.A.No.5255 of 2012. In the result, the Original Petition fails and the same is accordingly dismissed. No order as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A. to Judge