K.KANNAN, J. - (1.) THE writ petition is at the instance of an employee, who was found to have been wrongly terminated from service by the decision of the Hon'ble Supreme Court between the same parties and reported as Narinder Mohan Arya v. United India Insurance Company Limited 2006 II CLR 298 SC. While finding that the termination had been unjustified and holding that the petitioner was entitled to the relief claimed by him, the Hon'ble Supreme Court, in view of the fact that the petitioner had been facing litigation as far back as 1976, while directing reinstatement and keeping in view of the fact that no work had been taken from him. provided for only 50% of the back wages as payable. The back wages had been paid, but not without again a stiff fight from the petitioner to secure the reliefs through contempt petition. The back wages had again been calculated without reference to the increments which he would have normally earned and the revision of pay that had been admissible to the category of employees like him. The petitioner resorted to a writ petition earlier for granting the benefits along with his claim that he should have been treated as promoted from the day when his junior was promoted and admitted to the higher scales of pay for the promotion post. In the writ petition filed in CWP No. 1187 of 2009, this Court held on 27.1.2009 that the petitioner had earlier filed a contempt petition which was disposed off on 18.5.2007 directing that the Insurance Company would dispose off the representation as expeditiously as possible. The petitioner did make a representation and it provided for no further relief and, therefore, the petitioner had approached the Hon'ble Supreme Court again by filing a contempt petition. The contempt petition was declined and when this was brought to the attention of this Court in CWP No. 1187 of 2009, this Court allowed for withdrawal of the petition to enable the petitioner to seek clarification from the Hon'ble Supreme Court in regard to the consequential reliefs. It appears that the petitioner also applied for a clarification petition in Civil Appeal No.7645 of 2004 and the Court summarily rejected the petition on 28.1.2011.
(2.) THE writ petition has come to be filed subsequent to the disposal of the clarification petition filed by the petitioner before the Hon'ble Supreme Court. The petitioner has prayed in this case for reassessment of the wages payable to him and for granting to him the benefit of promotion and the higher scales admissible to such post. The petitioner has also sought for the calculation to be made on the basis of the increments that he would have earned and the revision of scales of pay that had been allowed over a period of time.
(3.) THE counsel for the respondents would contend that the petitioner is barred by the principle of res judicata, since the Hon'ble Supreme Court itself did not provide specifically for consequential benefits. The contention on behalf of the petitioner is that the provision for 50% wages must only be taken as wages with the normal increments that he would have earned and the revision of scales of pay that come about during the period of service which he would have held if he had not been terminated from service through the earlier impugned proceedings. The learned counsel for the respondents would however contend that the petitioner's claim for promotion post and the scales admissible to such post were untenable, since the promotion was dependent not merely on seniority but also on his performance and relative merit and that cannot be presumed in his favour while addressing his claim for back wages. I would accede to the defence only in so far as it states that the petitioner could not be treated as having been promoted from the day when his junior was promoted, especially when the promotion itself was not on the basis of seniority only and it was dependent on merit consideration which would not be possible to assess in a case where the petitioner had been not in service. However, the denial of normal increments for the length of service that he had but during the period when he was wrongly denied the right to be in service as indeed held by the Hon'ble Supreme Court in the judgment referred to above, would be grossly inequitable. I would not find the fact that the dismissal of contempt petition would have any bearing to the merits of his claim. A summary disposal of a contempt petition by the Supreme Court ought not to be taken as an adjudication between parties. A litigant that complains of contempt actually invokes the jurisdiction of the Court that the Court's majesty is in some way sullied by the conduct of the respondent or that the Court's order is flouted. It is really a matter between the Court and the party against whom the disobedience is complained of. Summary rejection of the contempt petition cannot, therefore, be taken as adjudication of the petitioner's right as canvassed to him. The same way, if a clarification petition was dismissed, it ought not to be understood that the petitioner's claim, which is now made, is also rejected. I would take the rejection of the clarification petition as a mere observation that an order does not require to be clarified. If the Hon'ble Supreme Court earlier ordered that the petitioner was entitled to 50% of his back wages, I would understand that the order to mean that he should be treated as having a right to obtain every benefit attached to a post and that would include every annual increments which he would have normally earned. I would also understand this to include every revision of scales that was normally admissible to the particular employment which the petitioner held. However, an assumption of a deemed promotion on merit consideration may not be possible, but every other benefit attached to the post shall be taken as available to him, since the Hon'ble Supreme Court had clearly held that the termination of service against the petitioner was not justified and found the petitioner's entitlement for reinstatement. The petitioner had already suffered to the extent of not merely a long drawn litigation, but also the material loss of having to forfeit 50% of his earnings which was forced upon him and not voluntarily given up by him by any unwillingness to work.;