Judgment

GROVER, J.: - The respondent was a Head Constable in the Punjab Police Force. At the material time he was holding the rank of Officiating Assistant Sub-Inspector of Police. A charge was levelled against him of having fabricated false evidence while investigating a criminal case. An enquiry was held by the Deputy Superintendent of Police who submitted a report on March 25, 1954 to the District Superintendent finding the respondent guilty of the charge. The Deputy Superintendent called upon the respondent to appear before him on March 27, 1954 to show cause why he should not be dismissed from service. The respondent asked for examination of some more witnesses. This was declined. Thereafter the District Superintendent passed an order dismissing him from service. His appeal was dismissed by the Deputy Inspector-General of Police on February 4, 1955. An appeal to the Inspector General also failed on April 25, 1956.

2. The respondent filed a writ petition in the Punjab High Court challenging the order of his dismissal. This petition was dismissed by Bishan Narain J., on August 29, 1957. The respondent preferred an appeal under Clause 10 of the Letters Patent to a Division Bench which was dismissed on August 19, 1958. The bench decided the case on the merits and held that the respondent had been given a reasonable opportunity to show cause as required by Article 311 (2) of the Constitution. The respondent applied for leave to appeal to this Court which was refused on May 25, 1963.

3. On March 5, 1959 the respondent instituted a suit for a declaration that the order of dismissal was violative of Article 311 of the Constitution and that he still continued to be in service. The suit was contested by the appellant and it was dismissed by the trial Court on May 19, 1960. The decree of the trial Court was affirmed in appeal by the Additional District Judge on August 18, 1961. The matter was taken in second appeal to the High Court. D. K. Mahajan J., who heard the appeal framed two additional issues on May 13, 1963 and called for a report of the trial Court on those additional issues. These issues were:-

(1) Whether the decision of the Letters Patent Bench in C. W. 185 of 1956 operates as res judicata in the present suit.

(2) Whether the plea of res judicata has been waived by the State.

On September 13, 1963 the trial Court submitted a report to the effect that the dismissal of the writ petition filed by the respondent did not operate as res judicata in the subsequent civil suit brought on the same ground and that the appellant had waived the plea of res judicata. The appeal was finally heard by the Division Bench consisting of Dua J. and Mahajan J., and was allowed on November 10, 1964. It was held that the appellant had waived the plea of res judicata and that the finding of the Courts below was erroneous on the question of a reasonable opportunity having been given to the respondent in the departmental enquiry. The order of dismissal was declared to be illegal and wrongful.

4. The appellant asked for leave to appeal to this court which was refused. A petition for special leave was filed to this court against the order of the High Court refusing to give leave. That was granted on October 15,1965. Another appeal was preferred by the appellant against the judgment of the Division Bench of the High Court dated November 10, 1964. Special leave in this was granted and the delay was condoned. These appeals are Civil Appeals Nos. 844 of 1966 and 336 of 1969. The respondent also filed a petition for special leave against the judgment of the High Court in the writ petition which was decided as far back as August 19, 1958. Special leave has not been granted in that case so far. The two appeals and the aforesaid Special Leave Petition (Civil) No. 2203 of 1969 shall stand disposed of by this judgment.

The question whether the decision in a writ petition operates as res judicata in a subsequent suit filed on the same cause of action has been settle