P.SRINIVASAN, J. - (1.) When the case was called on for hearing, Mr. Balai Chatterjee, Learned Counsel for the applicant was present. But neither the respondents nor their counsel were present even though the counsel for the respondents was present in court on 2.11.89 when the case was adjourned for hearing to 2.1.90. We, therefore, proceed to deal with the application on merits after hearing Mr. Balai Chatterjee.
(2.) In this application made under Sec. 19 of the Administrative Tribunals Act, 1985, the applicant, who retired from the service of Eastern Railway in August, 1974, complains that the respondent -railway has not reimbursed to him the expenses incurred by him for defending himself in a criminal case instituted against him by the Special Police (C.B.I.) which ended ultimately in his acquittal in appeal by the Patna High Court. 2a. The facts giving rise to this application may be stated briefly. When the applicant was working at Gomoh, Eastern Railway, as Yard Master, the C.B.I. laid a trap on a certain Dharanidhar Prasad, who was working as Head Clerk under the applicant, on 20.5.71. On the basis of the events that happened during the trap, the C.B.I. instituted a criminal case against the said D. D. Prasad alleging that he had accepted illegal gratification from a certain Md. Yusuf, a substitute employee, to enable him to get himself medically examined by the Railway doctor. The medical examination was said to be a pre -requisite before a substitute could be made permanent. The C.B.I. also sought to prosecute the applicant herein for having acted in collusion with the said D. D. Prasad for obtaining such illegal gratification. The trial court convicted D. D. Prasad as well as the applicant. Both of them carried the matter in appeal to the Patna High Court. This appeal -Criminal Appeal No. 75/75 - was decided by a Single Judge of the Patna High Court in a judgment delivered on 2.8.84. The learned Judge held that the prosecution had not proved the case against the applicant as well as D. D. Prasad and, therefore, set aside the order of conviction and sentence passed against both of them by the trial court. As already mentioned the applicant had retired from service in the normal course in the meanwhile in August, 1974. In view of the criminal case pending against the applicant his gratuity and other terminal benefits were withheld by the railway authorities After the criminal case was decided in favour of the applicant by the Patna High Court, he addressed the authorities to release his terminal benefits as well as to compensate him for the expenses incurred by him for defending himself. When this representation failed to evoke any response, the applicant filed a suit in the court of the learned Munsif, Asansol, which was registered as T.S. 24/85. In the said suit the applicant sought for a declaration. (i) that the defendants, meaning the respondent -railway, had "no right to withheld payment of the death -cum -retirement gratuity money of the plaintiff after the plaintiff had been acquitted of the charges".... (ii) that the "plaintiff is entitled to reimbursement of the amount spent by him in prosecuting the criminal case started against him in the discharge of his normal duties as a Railwayman under the defendants from 1971 -84 (13 years). In the body of the plaint, at para 6 the applicant estimated the court expenses incurred by him at Rs. 50,000/ - for which he claimed reimbursement from the railway. This suit was transferred to this Tribunal where it was taken on file as T.A. No. 1180 of 86. The said transferred application was decided by a Bench of this Tribunal consisting of Hon'ble Mr. Ashamukul Pal, Vice -Chairman and Hon'ble Mr. B. Mukhopadhyay, Administrative Member on 12.2.87. The said order directed the respondents to pay to the applicant the death -cum -retirement gratuity admissible to him under the rules as if he had retired normally on the date of his superannuation. The payment was ordered within three months from the date of the order, failing which interest at 10% was to be paid to the applicant after the said period of three months. This Tribunal also directed that the applicant be allowed to commute his pension as admissible under the rules on his application in proper form which was to be supplied to him immediately. No reference was, however, made in that order to the applicant's claim for reimbursement of expenses incurred by him for conducting his defence in the criminal case. In the present application, the applicant submit that this matter not having been decided while disposing of T.A. 1180 of 86, should be taken up for adjudication by us and a direction be issued to the respondents to reimburse the applicant for the expenses said to have been incurred by him to defend the criminal case against him.
(3.) The first issue that arises in this case is as to whether the applicant can file a fresh application for the very same relief which he had claimed in the earlier transferred application and which was not allowed in the order disposing of that application. Mr. Balai Chatterjee , Learned Counsel for the applicant submits that since the claim in regard to the reimbursement of expenses was not at all considered by the Tribunal while disposing of T.A. 1180 of 86, he is not barred by res judicata in raising that issue in the present application. He further submits that a preliminary issue like the maintainability of the application or the question of res judicata should be decided at the very outset i.e. when the application is admitted. Since the present application was admitted by this Tribunal by its order dated 27.8.87, the issue of maintainability or res judicata cannot be gone into again by us at this stage. According to him, we are barred from doing so and we should only hear the case on merits. Citing a number of cases decided by the Supreme Court, Mr. Chatterjee submits that a deserving case like the present one should not be rejected at this stage on the technical plea of res judicata. Moreover, the Civil Procedure Code is not applicable to the proceedings under the Administrative Tribunals Act, 1985, and so the rule of res judicata which appears in the said Code should not be imported and applied to the applications filed before this Tribunal.;