Union of India Vs. Nanak Singh 
INSC 19 (31 January 1968)
31/01/1968 SHAH, J.C.
CITATION: 1968 AIR 1370 1968 SCR (2) 887
F 1971 SC1676 (4) R 1981 SC2198 (13)
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.
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
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.
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
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
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
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
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
Nanak Singh then moved the High Court of
Punjab by a petition 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 dismissed. 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 advanced mainly
on the first point and on a decision of this point the appeal can be disposed
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 employment
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
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 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.