Nand Kishore
Vs. State of Punjab [1995] INSC 523 (21 September 1995)
Punchhi,
M.M. Punchhi, M.M. Ahmadi A.M. (Cj) Punchhi, J.
CITATION:
1995 SCC (6) 614 JT 1995 (7) 69 1995 SCALE (5)582
ACT:
HEAD NOTE:
Whether
the plea of constructive res judicata was rightly raised against the appellant,
in the facts and circumstances of this case, is the significant question, which
arises for determination in this appeal by special leave, against the judgment
and decree dated 13-8-1974 of the Punjab and Haryana High Court at Chandigarh, in Regular First Appeal No.156 of
1965.
Supportive
of the abovesaid appeal is a highly belated special leave petition, invited by
this Court on 6-12-1990 from the appellant, against the
judgment and order dated 5-
2-1962 of the Punjab
High Court at Chandigarh in Writ Application (Civil) No.1061
of 1961, in circumstances which we will mention later.
These
can conveniently be disposed of by a common order.
The
facts involved are not in dispute. A brief resume thereof will suffice. The appellant,
Nand Kishore joined service in the erstwhile Patiala State in May 1941. On the formation of Pepsu State he was taken as an Assistant with effect from September 1, 1956. On the merger of Pepsu with the
State of Punjab, he was integrated as an Assistant
in the Punjab Civil Secretariat at Chandigarh, in the Food Distribution Branch. Having completed ten years qualifying
service he was compulsorily retired on January 6, 1961 from the service by an order in the
following terms:
"ORDER
OF THE GOVERNOR OF PUNJAB Sanction is accorded under the provisions of Rule
5.32(b) of the Punjab Civil Services Rules, Volume II, to the compulsory
retirement from Government Service of Shri Nand Kishore, Assistant Food
Distribution Branch, Punjab Civil Secretariat with immediate effect.
2. He
will be entitled to such proportionate pension and death-cum- retirement
gratuity as may be admissible under the rules.
Chandigarh Dated the sd/- 6th January, 1961 E.N. Mangat Rai, Chief Secretary to
Govt. Punjab" The representations of the appellant to the Government and
memorial to the Governor brought him no relief.
Thereafter
he moved the Punjab High Court in Writ Application No.1061 of 1961 praying for
quashing of the order dated January 6, 1961
retiring him compulsorily. The writ petition came up for hearing before a
division bench consisting of Tek Chand and I.D. Dua, JJ. The impugned order of
compulsory retirement was challenged by him on a variety of grounds inter-alia
urging that he was not governed by Rule 5.32 of the Punjab Civil Service Rules,
Volume II and that rather he was governed by the new Pension Rules. All the
pleas of the appellant were repelled. It was factually noted by the Bench that
Rule 5.32 of the Punjab Civil Service Rules, Volume II clearly contemplated the
existence of power in the Government to retire a permanent servant compulsorily
after 10 years of qualifying service. The writ petition was dismissed on February 2, 1962. It is worth bearing in mind that
the appellant did not at that stage question the validity of Rule 5.32 and the
High Court too on its own did not engage itself to the question. The matter
rested there.
The
scenario changed thereafter. In Moti Ram Deka & ors. v. N.E. Frontier
Railway & ors. [AIR 1964 SC 600] this Court was called upon to consider the
validity of Rules 148(3) of the Railway Rules. These Rules authorised the
termination of service of the railway employee by serving him with a notice for
a requisite period, or paying him salary for the said period, in lieu of
notice. This Court held that a person who substantively holds a permanent post
had a right to continue in service subject to two exceptions, i.e., (i)
superannuation; and (ii) compulsory retirement. The second exception was
affirmed by this Court with the reservation that Rules of compulsory retirement
would be valid if having fixed a proper age of superannuation, they permit
compulsory retirement after putting in a minimum period of service. This Court
observed that if the compulsory retirement permitted the authority to retire a
public servant at a very early stage of his career, the question whether such a
Rule would be valid might have to be considered on a proper occasion.
Encouraged
by the decision in Moti Ram Deka's case, the appellant on February 24, 1964,
filed a suit in the Court of Senior Subordinate Judge, Patiala for a
declaration that the order of compulsory retirement dated January 6, 1961,
passed as it was under Rule 5.32 of the Punjab Civil Service Rules, Volume II,
after ten years of qualifying service, was invalid, and that he should be
treated to have continued in the service of the Punjab Government, enjoying all
the necessary rights and benefits thereof. He also claimed the additional
relief regarding payment of pay etc.
Shortly
after the institution of the suit, on April 1, 1964, this Court in Gurdev Singh Sidhu
v. State of Punjab and Anr. [1964(7) SCR 587] got the
opportunity to apply the principles evolved in Moti Ram Deka's case to a
compulsory retirement case under the second proviso to Article 9.1 of the Pepsu
Service Regulations as amended by a notification dated January 19, 1960. The
said proviso empowered the Government retaining an absolute right to retire any
Government servant after he had completed 10 years qualifying service without
giving any reason and the government servant any right to claim special
compensation on this account. This right however was not to be exercised by the
Government except when it was in public interest to dispense with further
services of a Government servant, such as on account of inefficiency,
dishonesty, corruption or infamous conduct. This Court took the view that it
was not permissible for a State while reserving to itself the power of
compulsory retirement by framing Rules prescribing a proper age of superannuation
to frame another one giving it the power to compulsory retire a permanent
government servant at the end of ten years service, for that Rule cannot fall
outside Article 311(2) of the Constitution.
Undisputably
the Pepsu Regulation in question was identical to Rule 5.32 of the Punjab Civil
Service Rules, Volume II. Since the suit of the appellant was based on the law
as declared by this Court in Moti Ram Deka's case and later on Gurdev Singh Sidhu's
case, the State of Punjab took up the plea in its written
statement that the suit, because of the earlier decision in the writ
application, was barred by principles of res-judicata. The appellant reacted to
the defence by stating that the prevailing view of the Punjab High Court was
that a judgment in a writ petition did not operate as res-judicata and so he
should get a decree in his favour. The Trial Court thus on the issue of the
suit being barred by principles of res-judicata or not, ruled in favour of the
appellant on the basis of the view then prevailing in the High Court. On the
other issue, whether the order dated January 6, 1961 of compulsory retirement
was illegal, void etc. the Court ruled that since Article 9.1 of the Pepsu
Regulations had been struck down in Gurdev Singh Sidhu's case and since Rule
5.32 of the Punjab Civil Service Rules, Volume II was identical in nature, the
latter Rule therefore was invalid and consequently the impugned order of
compulsory retirement passed thereunder was illegal and invalid. As a necessary
consequence the suit of the appellant was decreed. He was granted the
declaration that his compulsory retirement was illegal and consequently a
decree for Rs.11321.75 as arrears of salary etc. with costs.
The
State of Punjab went up in Regular First Appeal
before the Punjab and Haryana High Court raising one
and the only one point that the suit of the appellant was barred by principles
of res-judicata, and consequently the order of compulsory retirement of the
appellant could not be upset.
The
matter was placed before a division bench consisting of S.S. Sandhawalia and
M.R. Sharma, JJ. who after considering the matter, on the basis of the case law
by then developed, referred the following question of law for decision by a
Full Bench:
"Whether
the decision of the High Court declining to issue a writ of mandamus on the
assumption that a statutory rule was valid, operates as res-judicata in a
subsequent suit instituted after the statutory rule had been declared as
unconstitutional by the Supreme Court of India" In the Full Bench
constituted, the same learned Judges were members, the added Presiding Judge
being B.R. Tuli, J.
The
learned Judges of the Full Bench could not agree to the answer and thus they
differed. S.S. Sandhawalia, J. answered the question formulated in the affirmative
and B.R. Tuli, J.
agreed
with him. M.R. Sharma, J. however answered the question in the negative. The
decision was made on May
8, 1974 per majority
and the question was answered in the affirmative. The case was ordered to go
back to the Division Bench for decision. Then the Division Bench consisting of
S.S. Sandhawalia and Manmohan Singh Gujral, JJ. on August 13, 1974 allowed the appeal of the State of Punjab following the dictum of the Full
Bench. Aggrieved against the said decision, the appellant sought leave and so
Civil Appeal No.632 of 1975 is before us to challenge principally the view of
the Full Bench of the High Court.
The
aforesaid appeal appears to have been heard for quite sometime on 6-12-1990 by a three-member Bench, as would appear from the
Court Proceedings extracted below. The bench was goaded to invite a special
leave petition by the appellant against the order dated 5-2-1962 of the Punjab High Court in Writ Application No.1061
of 1961 accompanied by an appropriate application for condonation of delay. The
Court Proceedings dated 6-12-1990 read thus:
"We
have heard this appeal for some time. In the meantime we think it will be
better if the petitioner is advised to file a special leave petition from the
order of the High Court dated 5.2.1962 in writ petition No.1061/61 with an
appropriate application for condonation of delay. If that petition were to be
accepted then perhaps many of the points which are raised in this civil appeal
may not be necessary to be gone into. In this view of the matter, we adjourn
this appeal for a period of 8 weeks. Counsel should file the SLP within three
weeks from today and serve a copy on the counsel for the State of Punjab. The counsel will so arrange the
papers that when the matter is listed, both the civil appeal and SLP are ready
for final hearing." The step of the three-member Bench so taken reveals
its mind as reflected in the above proceedings. Their Lordships wanted to do
substantial justice. It was thought better to advise the petitioner to file a
special leave petition. As we view this order, having invited the petitioner to
file the special leave petition, it is no longer advisable or appropriate for
us to retrace back the step put forward by the three-member Bench. It is
significant to recall that the writ application was dismissed on February 5,
1962 and the moment Moti Ram Deka's case appeared on the scene, the appellant
on February 24, 1964, within limitation, brought forward his suit which got
strengthened by Gurdev Singh's case appearing within a couple of months of its
filing. The appellant-special leave petitioner was thus bonafide pursuing an
appropriate remedy for all these years. In these circumstances, we think that
an appropriate case for condonation of delay of the intervening period has been
made out. We, therefore, allow CC 11644/91 and condone the long durated delay
in these exceptional circumstances. On doing so, we grant leave to appeal. The
appeal thus arising and the Civil Appeal No.632 of 1975 may now be disposed of
together.
As
said before it has never been disputed that Rule 5.32 of the Punjab Civil
Service Rules, Volume II is identical in text, terms and purport with the
second proviso to Article 9.1 of the Pepsu Service Regulations. Gurdev Singh's
case thus would mandate us to hold that Rule 5.32 of the Punjab Civil Service
Rules, Volume II should meet the same fate, holding that the Rule be struck
down as invalid since it contravenes Article 311(2) of the Constitution.
Holding
so the order of compulsory retirement of the appellant dated January 6, 1961 is struck down and the appellant is
held entitled to restoration of the decree of the Trial Court.
Putting
aside for the moment the course above-adopted, let us otherwise examine the
view of the Hon'ble Judges of the Full Bench of Punjab and Haryana High Court
on the question formulated. It is well known that the general principle
underlying the doctrine of res-judicate is ultimately based on considerations
of public policy. One important consideration of public policy is that the
decisions pronounced by courts of competent jurisdiction should be final,
unless they are modified or reversed by appellate authorities, and the other
principle is that no one should be made to face the same kind of litigation
twice over, because such a process would be contrary to considerations of fairplay
and justice. These principles stand enunciated in Daryao and others v. The
State of U.P. & Others [1962(1) SCR 574]. This
court in The Amalgamated Coalfields Ltd. & Anr. v. The Janapada Sabha, Chhindwara
[1963 (Supp.)(1) SCR 172] opined that constructive res- judicata was an
artificial form of res-judicata enacted by Section 11 of the Code of Civil
Procedure and it should not be generally applied to writ petitions filed under
Article 32 and Article 226 of the Constitution. The court then had the occasion
to point out that when a matter related to taxation and assessment levied for a
different year, the doctrine of res-judicata was itself inapplicable. This
Court still spelled out the binding effect of a decision made under Article 141
of the Constitution as follows:
"If
for instance, the validity of a taxing statute is impeached by an assessee who
is called upon to pay a tax for a particular year and the matter is taken to
the High Court or brought before this Court and it is held that the taxing
statute is valid, it may not be easy to hold that the decision on this basic
and material issue would not operate as res judicata against the assessee for a
subsequent year. That, however, is a matter on which it is unnecessary for us
to pronounce a definite opinion in the present case. In this connection, it
would be relevant to add that even if a direct decision of this Court on a
point of law does not operate as res judicata in a dispute for a subsequent
year, such a decision would, under Art.141, have a binding effect not only on
the parties to it, but also on all courts in India as a precedent in which the
law is declared by this Court. The question about the applicability of res judicata
to such a decision would thus be a matter of merely academic
significance." Gajendragadkar, C.J. who authored the judgment in the
above-quoted case of The Amalgamated Coal Fields Ltd's case, later in Devilal Modi
v. Sales Tax Officer, Ratlam & Others [1965(1) SCR 636] yet applied the
principles of res judicata holding that if the doctrine of constructive res judicata
was not applied to writ proceedings, it would be open to a party to take one
proceeding after another and urge new grounds every time, which was plainly inconsistent
with the considerations of public policy. This decision was followed in State
of U.P. v. Nawab Hussain [1977(3) SCR 428].
On
another facet of res judicata, this Court in Mathura Prasad Bajoo Jaiswal &
Ors. v. Dossibai N.B. Jeejeebhoy [1970(3) SCR 830] had the occasion to observe
as under:
"A
pure question of law unrelated to facts which give rise to a right, cannot be
deemed to be a matter in issue.......A decision on an issue of law will be res judicata
in a subsequent proceeding between the same parties, if the cause of action of
the subsequent proceeding be the same as in the previous proceedings, but not
when the cause of action is different, nor when the law has since the earlier
decision been altered by a competent authority, nor when the decision relates
to the jurisdiction of the Court to try the earlier proceeding, nor when the
earlier decision declares valid a transaction which is prohibited by law."
(emphasis supplied) When this Court strikes down a statutory provision holding
it to be unconstitutional, it derives its authority to do so under the
Constitution. Under Article 141, the law declared by it is of a binding
character and as commandful as the law made by a legislative body or an authorised
delegee of such body. The Court is thus a "competent authority"
within the scope of the words above emphasised. On the other hand the majority
view expressed in the Full Bench decision that "the Courts of record
including the Supreme Court only interpret the law as it stands but do not
purport to amend the same.
Their
Lordship's decisions declare the existing law but do not enact any fresh
law", is not in keeping with the plenary function of the Supreme Court
under Article 141 of the Constitution, for the Court is not merely the
interpreter of the law as existing but much beyond that. The Court as a wing of
the State is by itself a source of law. The law is what the Court says it is.
Patently the High Court fell into an error in its appreciation of the role of
this Court.
Bearing
the above principles in mind what at best was said by the State of Punjab was
that failure to raise the constitutionality of Rule 5.32 in the writ petition
preferred by the appellant would imply, on the principle of "might and
ought", that the opportunity of controverting the matter had been lost and
that it should on the principles of constructive res judicata be taken that the
matter had been actually raised and adversely decided. But in Forward
Construction Co. and Others. v. Prabhat Mandal and Others [1986(1) SCC 100],
this Court has taken the view that where a matter has been constructive in
issue it cannot be said to have been actually heard and decided. It could only
be deemed to have been heard and decided.
It
would then have to be seen the twin play of the notion of deemed
constitutionality and bar of constructive res judicata. Raising the
constitutionality of a provision of law, as it appears to us, stands on a
different footing than raising a matter on a bare question of law, or mixed
question of law and fact, or on fact. There is a presumption always in favour
of constitutionality of the law. The onus is heavy on the person challenging
it. It is by the discharge of onus that the presumption of constitutionality
can be crossed over. When a person enters a Court for relief and does not
challenge the constitutionality of the law governing the matters directly and
substantially in issue, it only means and implies that he goes by the
presumption of constitutionality. He cannot on this stance be deemed to have raised
the question of constitutionality and the question of constitutionality to have
been decided against him and such matter to have been directly and
substantially in issue. The constitutionality of the Rule relating to
compulsory retirement cannot be deemed to have been questioned and decided
against the appellant on the principles of "might and ought" or it
being "directly and substantially in issue". It cannot be taken as a
rule that one of the pleas, either by the plaintiff or the defendant, in every
suit or proceeding, must of necessity relate to the constitutionality of the
law on which the cause is founded or defended in order to obviate the plea of
constructive res judicata being raised in an eventuality. It cannot also be
taken as a rule that constitutionality of the law involved is a matter directly
and substantially in issue, and if not raised renders a mute decision in favour
of its constitutionality barring the plea being raised in a subsequent suit. If
there be read such a rule in all civil litigation, it would, to our mind, be
against public policy vexing and burdening the courts to go into the
constitutionality of provisions of law in every case. When under the impugned
rule, the Government assumed to itself the power to compulsorily retire a permanent
government servant after ten years of qualifying service, the court's act of
striking that Rule as unconstitutional is the law which appeared on the scene,
not only to break the presumption of constitutionality but to declare it void.
In a sense the offending provision was never there and in the other it was
henceforth not there. In either event, it would be within the ambit of the emphasised
words in Mathura Prasad's case.
It
thus seems to us that the view of the Full Bench of the High Court was erroneous
on first principles. In the question referred to the Full Bench, no assumption
could be made that a statutory Rule was valid when the court declined to issue
a writ of mandamus, or its being treated as res judicata for the purpose of the
subsequent suit. Mathura Prasad's case did not merely stop at dealing with
decisions relating to the jurisdiction of the Court trying the earlier
proceeding, but had further gone to say that the principles of constructive res
judicata would not apply when the law has since the earlier decision been
altered by a competent authority. And in the context, this Court is a competent
authority to alter the law when it declares it to be unconstitutional.
Alteration does not limit alone to change therein but is inclusive of the power
of striking down. Thus even if we were to decline the belated special leave
petition of the appellant against the judgment and order of the High Court
dated 5-2-1962 passed in Writ Application No.1061 of 1962, the appellant would
be entitled to succeed in having the impugned order of the High Court upset in
Civil Appeal No.632 of 1975, for the suit of the appellant could not, in any
event, be held to be barred by principles of res judicata.
Accordingly
we would compositely allow both the appeals, set aside the respective judgments
and orders of the High Court holding that the order of compulsory retirement of
the appellant under Rule 5.32 was void and inoperative and the appellant
entitled to the meaningful relief of arrears etc. as claimed by him in the
plaint, and in accordance with the judgment of the Trial Court. The appellant
shall get his costs throughout only in Civil Appeal No.632 of 1985.
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