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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: NANAK SINGH

DATE OF JUDGMENT: 31/01/1968

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V.

CITATION:  1968 AIR 1370            1968 SCR  (2) 887  CITATOR INFO :  F          1971 SC1676  (4)  R          1981 SC2198  (13)

ACT: Res Judicata-Petition under Art. 226 allowed by single Judge of  High  Court  on two  grounds-Division  Bench  dismissing petition   by  adversely  deciding  first  ground  and   not considering second ground-Second ground whether can be basis of civil suit-Whether barred by res-judicata.

HEADNOTE: The respondent was a temporary Field Inspector of the Office of  the Custodian of Evacuee Property, Delhi.  By  an  order passed   in   January   1958   the   Additional   Settlement Commissioner,  Mr. Kane, who was also holding the office  of Additional  Custodian  terminated  the  employment  of   the respondent  after giving him one month’s salary in  lieu  of notice.   The  order  was  confirmed  by  the   departmental authorities in appeal.  The respondent filed a writ petition in the High Court on two grounds, namely: (i) that the order terminating the employment amounted to punishment and  could not be made without affording opportunity to be heard;  (ii) that  Mr. Kane was not competent under s. 5 of  the  Central Services (Temporary Service) Rules, 1949 to pass the  order. The  single  Judge who heard the petition  upheld  both  the grounds  and granted the petition. in appeal,  the  Division Bench   reversed  the  order  and  dismissed  the   petition observing  that  the  order in question did  not  amount  to punishment.   The  Division Bench observed that  the  second point was not before -them, be-cause arguments were advanced mainly  on  the first point and on a decision of  the  first point  the  appeal could be disposed  of.   The  respondents petition  under  Act. 136 of the  Constitution  for  special leave to appeal to this Court was dismissed.  The respondent thereafter instituted a suit in the Civil Court.  The  trial Court dismissed the suit but the first appellate court  held that  the  order terminating the  respondent’s  service  was void.   A second appeal by the Union of India was  dismissed by the High Court on the view that the order of  termination of services was passed by an incompetent authority and  this issue  was not barred by res judicata.  The Union  of  India appealed.

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HELD  : The single Judge who decided the  respondent’s  writ petition  decided both the grounds in his favour.   When  in appeal  the High Court reversed the judgment  and  dismissed the  petition  it must be deemed to have rejected  both  the grounds on which the petition was founded.  In rejecting the first plea the High Court gave detailed reasons.  The second plea must also be deemed to have been negatived by the  High Court,  for the High Court could not, without reversing  the judgment  of the single Judge, on that plea  have  dismissed the  petition.   ’Me  suit  was  therefore  barred  by   res judicata. it  could  not be said that the High Court reserved  to  the respondent  the  right  to agitate the  question  about  the authority of Mr. Kane to pass the order, in a separate suit. There  was no such express reservation and it could  not  be implied,  for such an implication was plainly  inconsistent, with the final order passed by the High Court. Gulabchand Chhotal Parikh v. State of Gujarat, A.I.R.  1965. S.C. 1153, referred to. Abdullah  Ashgar Ali Khan v. Ganesh Dass, A.T.R.  1917  P.C. 201 held not applicable. L3 Sup Cl/68-14 888

JUDGMENT: CIVIL  APPELLATE  JURISDICTION  : Civil Appeal  No.  280  of 1967. Appeal  by special leave from the judgment and  order  dated September 29, 1966 of the Punjab High Court Circuit Bench at Delhi in Regular Second Appeal No. 74-D of 1966. B.   Sen, R. N. Sachthey and S. P. Nayar, for the appellant. Pritam Singh Safeer, for the respondent. The Judgment of the Court was delivered by Shah,  J.  Nanak  Singh-respondent in  this  appeal-held  in August 1957 the post of Field Inspector in the Office of the Custodian, Evacuee Property, Delhi, as a temporary employee. By  order  dated January 10, 1958, K.  S.  Kane,  Additional Settlement  Commissioner who was also holding the office  of Additional  Custodian  terminated  the  employment  of   the respondent  after giving him one month’s salary in  lieu  of notice.  The order of Mr. Kane was confirmed in appeal. Nanak  Singh then moved the High Court of Punjab by a  peti- tion  under  Art.  226  of the  Constitution  for  an  order declaring  that  the  determination of  his  employment  was "void, illegal and unconstitutional" on two grounds-(1) that the  order terminating the employment amounted  to  imposing punishment   and  could  not  be  made   without   affording opportunity to the employee to show cause against the action proposed to be taken in regard to him; and (2) that Mr. Kane was  not competent under r. 5 of the Central Civil  Services (Temporary   Services)   Rules,  1949   to   terminate   his employment.   Gurdev Singh, J., upheld both the grounds  and granted  the petition.  The High Court of punjab  in  appeal reversed  that order and directed that the petition be  dis- missed.    The  High  Court  observed  that  by  the   order determining the employment of Nanak Singh no punishment  was imposed.   In  dealing  with the authority of  Mr.  Kane  to terminate  the  employment  of Nanak Singh  the  High  Court observed :               "In  the  second place it was urged  that  the               Officer who had passed the order of  dismissal               was not competent to do so.  The second  point               is  not before us because arguments have  been

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             advanced  mainly on the first point and  on  a               decision of this point the appeal can be  dis-               posed of." A petition preferred to this Court against the order of  the High  Court  for  leave  to appeal under  Art.  136  of  the Constitution was rejected. Nanak  Singh thereafter instituted suit No. 218 of  1963  in the -Court of the Senior Sub-Judge, Delhi, for a declaration that  the  order terminating his employment was made  by  an authority lower 889 than  the authority competent to pass that order,  and  that the  order  was  "wanting in bona fides"  and  was  on  that account "illegal, null and void", and for an order declaring him  entitled to be treated as continuing in employment  and on duty and entitled to all the benefits of service as if he had  not  been  removed  from  employment.   This  suit  was dismissed  by the Court of First Instance.  In  appeal,  the Additional District Judge, Delhi, reversed the decree passed by the Court of First Instance, and declared that the  order of Mr. Kane dated January 10, 1958, terminating the  employ- ment of Nanak Singh was void and inoperative, and that Nanak Singh  was entitled to be treated as in service and on  duty since the date of -the order.  A second appeal against  that judgment by the Union of India was dismissed by Bedi, J. The learned  Judge  was  of the view that the  judgment  of  the Division  Bench of the High Court in the writ  petition  did not  operate  to prevent Nanak Singh  from  reagitating  the question  about the authority of Mr. Kane to  terminate  his employment,  and  that on the materials  placed  before  the Court  there  was  no  evidence  that  authority  had   been delegated to Mr. Kane to exercise that power.  Against  that order,  with special leave, the Union of India has  appealed to this Court. The  first  question which falls to be  determined  in  this appeal is whether the judgment of the High Court in the writ petition operated as res judicata in the Civil Suit filed by Nanak  Singh.   Nanak  Singh, it may  be  recalled,  claimed relief  on two alternative grounds-(1) infringement  of  the protection  under  Art.  311 of the  Constitution;  and  (2) absence  of  authority  in the Officer  who  terminated  his employment  under  r.  5  of  the  Central  Civil  Service’, (Temporary   Service)   Rules,  1949.    Each   ground,   if successful,  was  sufficient  to support  an  order  in  his favour.   Gurdev  Singh,  J., decided both  the  grounds  in favour of Nanak Singh.  The High Court reversed the judgment of  Gurdev  Singh, J., and dismissed the petition  filed  by Nanak Singh : thereby the High Court must be deemed to  have rejected both the grounds on which the petition was founded. On  the  plea  that  the  order  of  termination  of   hi.-, employment  amounted  to  dismissal,  the  High  Court  gave detailed reasons and observed that by the termination of his employment Nanak Singh was not visited with any  punishment. The second plea about the authority of Mr. Kane also must be deemed  to  have been negatived by the High Court,  for  the High  Court  could not, without reversing  the  judgment  of Gurdev  Singh, J., have dismissed the petition.  It is  true that  in  the judgment of the Court of Appeal  some  obscure statement  has been made, and it is difficult to  appreciate the true purport thereof.  But what operates as res judicata is  the decision and not the reasons given by the  Court  in support  of  the  decision.  We are  unable  to  agree  with counsel  for  Nanak Singh, that the High Court  reserved  to Nanak 890

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Singh the right to agitate the question about the  authority of  Mr. Kane in a separate suit.  There is no  such  express reservation,   and  it  cannot  be  implied,  for  such   an implication  is  plainly inconsistent with the  final  order passed by the High Court.  Even assuming that the High Court was  in  error in holding that the appeal could  be  decided only  on the first point, the order dismissing the  petition must  still operate as res judicata in respect of  both  the points on which the petition was founded. This  Court  in  Gulabchand Chhotalal  Parikh  v.  State  of Gujarat(1) observed that the provisions of s. 11 of the Code of  Civil  Procedure are not exhaustive with respect  to  an earlier decision operating as res judicata between the  same parties  on the same matter in controversy in  a  subsequent regular suit, and on the general principle of res  judicata, any  previous decision on a matter in  controversy,  decided after  full contest or after affording fair  opportunity  to the  parties  to prove their case by a  Court  competent  to decide  it,  will operate as res judicata  in  a  subsequent regular  suit.  It is not necessary that the Court  deciding the  matter formerly be competent to decide  the  subsequent suit  or that the former proceeding and the subsequent  suit have  the same subject-matter.  There is no good  reason  to preclude  such decisions on matters in controversy  in  writ proceedings  under Art. 226 or Art. 32 of  the  Constitution from  operating as res judicata in subsequent regular  suits on the same matters in controversy between the same  parties and  thus  to give limited effect to the  principle  of  the finality  of  decision  after full contest.   The  Court  in Gulabchand’s  case(1)  left open the  question  whether  the principle  of constructive res judicata may be invoked by  a party  to  the subsequent suit on the ground that  a  matter which  might  or ought to have been raised  in  the  earlier proceeding  but  was not so raised therein,  must  still  be deemed to have been decided. If  the order of the High Court in appeal from the order  in the  writ petition operated constructively as res  judicata, it might have been necessary to consider the question  which was left open by the Court in Gulabchand’s case(1).  But  in our  view  the  judgment in the previous  case  operates  by express decision as res judicata.  It is true that in  order that  the  previous  adjudication between  the  parties  may operate  as res judicata, the question must have been  heard and decided or that the parties must have an opportuntiy  of raising  their  contentions therein.  In the  present  case, Gurdev Singh, J., dealt with the question in some detail and held  that  Mr  Kane  had  no  authority  to  terminate  the employment of Nanak Singh.  The High Court in appeal thought that  the  appeal  could be disposed of only  on  the  first ground,  and they recorded no express finding on the  second ground.  But once the (1)  A. 1. R. 1965 S. C. 1153. 891 appeal  was  allowed  and the petition  was  dismissed,  the dismissal  of the petition operated as a rejection  of  both the  grounds on which it was founded.  The judgment  of  the Privy  Council on which reliance was placed by  counsel  for Nanak Singh-Abdullah Ashgar Ali Khan v. Ganesh Dass(1), has, in  our judgment, no application.  In that case a  suit  was dismissed  by the Court of the Judicial Commissioner on  the view that its constitution was defective, and no opinion  on the merits of the dispute between the parties was expressed. The  judgment of the Judicial Commissioner was held  not  to operate  as  res judicata in a subsequent suit  between  the parties  to the previous suit, because the dispute  was  not

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decided on its merits in the previous suit expressly or even by   implication.   It  is  unnecessary  on  that  view   to adjudicate upon the question whether Mr. Kane had  authority to determine the employment of Nanak Singh. The  appeal  is allowed and the decree passed  by  the  High Court is set aside.  The decree passed by the Court of First Instance is restored. When special leave to appeal was granted to the Union,  this Court  passed an order that the Union of India will pay  the costs of the appeal in any event.  The Union of India  must, therefore,  pay the costs of the respondent in this  appeal. There will be no order as to costs in the Court of the First Instance, the District Court and the High Court. G.C.                                  Appeal allowed. (1) A.I.R. 1917 P.C. 201. 892