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TMI Blog2010 (3) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... ; The respondent No. 1 filed an application under Article 226 of the Constitution of India being W.P. No. 815 of 2001 thereby challenging an order dated March 13, 2001 by which the respondent No. 1 was informed by his employer, the appellants, that his application for retirement under the scheme for voluntary retirement offered by the employer had been rejected. (b) The said writ application was allowed on June 14, 2002 by a learned single Judge of this Court on contested hearing by quashing the said order and directing the appropriate authority under the scheme to take a decision in the matter in accordance with law. (c) An appeal being No. 165 of 2003 was preferred by the appellants against the said order dated June 14, 2002 and the Division Bench consisting of Subhro Kamal Mukherjee and R. N. Banerjee, JJ. (hereinafter referred to as the First Division Bench) dismissed the said appeal on September 27, 2006 thereby directing the competent authority under the said scheme to reconsider the request of the respondent No. 1 for his voluntary retirement from the service of the Appellant-Bank in accordance with law. While disposing of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordships were unable to agree with the above observations of the First Division Bench on the above issue and gave a different reason. (h) After making such observations, deviating from the earlier view taken by the First Division Bench, Their Lordships of the Referring Bench felt that as Their Lordships proposed to take a view contrary to the one taken by another Division Bench, the judicial propriety demanded that the matter should be referred to the Hon'ble Chief Justice for constitution of a Larger Bench for the purpose of deciding the question that we have already quoted above and in making such reference, Their Lordships relied upon the following observations of the Apex Court in the case of Sundarajas Kanyalal Bhathija v. Collector, Thane, reported in AIR 1990 SC 261 : "It would be difficult for us to appreciate the judgment of the High Court. One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and certain, and when it is not lawfully subject to subsequent rescission, review, or modification by the tribunal which pronounced it........" 22. Reference, in this connection, may also be made to Ram Chandra Singh v. Savitri Devi (2005 (II) JT (S.C.) 439). 23. Yet recently in Swamy Atmananda v. Sri RamakrishnaTapovanam 2005 (4) JT (S.C.) 472 in which one of us was a party, this Court observed, 2005 AIR SCW 2548 : AIR 2005 SC 2392, paras 29 and 30 : "The object and purport of principle of res judicata as contained in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the point decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent Court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment. The principle of res judicata envisages that a judgment of a Court of concurrent jurisdiction directly upon a point would create ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue if faintly without any real hope of success. 25. In Gulabchand Chhotalal Parikh v. State of Gujarat (AIR 1965 SC 1153) the Constitution Bench held that the principle of res judicata is also applicable to subsequent suits where the same issue between the same parties had been decided in an earlier proceeding under Article 226 of the Constitution. 26. It is trite that the principle of res judicata is also applicable to the writ proceedings. (See Himachal Pradesh Road Transport Corporation v. Balwant Singh, (1993 Supp (1) SCC 552): 1992 AIR SCW 2659 : AIR 1992 SC 2201.. 27. In Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787), it was held : (2005 AIR SCW 270 : AIR 2005 SC 626, para 18) : "It is now well-settled that principles of res judicata applies in different stages of the same proceedings. (See Satyadhyan Ghosal v. Smt. Deorajin Debi (AIR 1960 SC 941)and Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue. 8. The decision relied upon by the Referring Bench in support of Reference merely reiterates principle of judicial decorum of following the precedent of a co-ordinate Bench except by way of reference to a larger Bench but by taking aid of such decision, a Court cannot overcome the principles of res judicata on an issue of fact or even an issue of mixed question of law and fact which is not only binding upon the parties but also upon the Court subsequently dealing with the concluded issue. 9. We have already pointed out that the question formulated by the Referring Bench is not a pure question of law but basically an issue of fact already decided in the facts of the case by the First Division Bench. 10. We, therefore, hold that the Reference is competent (sic) and accordingly, we return the Reference to the Referring Bench without deciding the issue framed for the reasons discussed above. 11. In the facts and circumstances, there will be, however, no order as to costs. 12. [Order per : Tapan Kumar Dutt, J.]. - I agree. 13. [Order per : Prasenjit Mandal, J.]. - I agree. 14. Urgent photostat certified copy of this judgment be supplied t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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