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High Court Of Delhi
SUBHASH JUNEJA - Appellant
Versus
UNION OF INDIA - Respondent
Decided On : 03/08/1996
Held:
A judgment inter parte of the competent court in a previous writ petition would operate as rest judicata in a subsequent writ petition between the same parties where the issues directly involved in the two proceedings are the same, irrespective of the fact whether or not the decision in the earlier writ petition was founded on a view contrary to the one, subsequently expressed in a different case. Correctness or otherwise of the earlier decision is wholly irrelevant where the conditions for the application of the Rule of rest judicata are satisfied in the latter case.
The matter in issue, if it is one purely of fact, decided in the earlier proceeding by the competent court, must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties, for the same reason cannot be questioned in a subsequent proceeding between the same parties and also even if the decision is on a question of law, the same principle would apply except in cases where the question raised is a question of law and relates to the jurisdiction of the Court or the lack of it or the law has been subsequently changed.
( 1 ) AS the facts involved in both the writ petitions arc similar and the issues raised before us are identical in nature, we propose to dispose of both these writ petitions by this common judgment and order.
( 2 ) IN this writ petition, the petitioner has challenged the order of termination passed against him on 3. 3. 1980 by the Government of India terminating his services in exercise of the powers vested under the provisions of Section 18 of the Army Act. In this writ petition, substantially two reliefs are sought for by the petitioner - the first relief being for quashing of the order dated 3. 3. 1980 by which the services of the petitioner was terminated and the other being that he be declared to be entitled for all benefits with respect to payment of salary, pension and all other benefits as if he continued to be in service upto the date of his superannuation. Apparently, therefore, the second relief sought for by the petitioner in this writ petition is dependent and consequent upon the view taken by this court on the first relief sought for by the petitioner in the present writ petition.
( 3 ) INCIDENTALLY it may be mentioned that the present petitioner also filed a writ petition earlier challenging the said impugned order which was registered and numbered as writ petition No. 422/1980. On perusal of the contents of the aforesaid writ petition, it appears that in the said writ petition also the petitioner challenged and sought for quashing of the order dated 3. 3. 1980 whereby his service was terminated invoking the provisions of Section 18 of the Army Act. On a comparison of the contents of both the writ petitions, it is found that in the earlier writ petition also the petitioner challenged the validity of the order dated 3. 3. 1980 on the ground of the same being not in conformity with the provisions of the Army Act including the provisions of Section 18 of the Army Act read with Army Rules 14 and 15. The further grounds of challenge were in respect of violation of the principles of natural justice in passing the aforesaid order and also on the ground that the said order was passed malafide. The Division Bench of this Court on 21. 4. 1980 dismissed the aforesaid writ petition by recording the following order:
"dismissal from service is under Section 18 of the Army Act which is complimentary to Article 310 of the constitution. This means that the officer held the tenure during the pleasure of the President. It has been contended that it was not in accordance with the provision of the Act and that due process for dismissal for misconduct has not been followed. The impugned order does not say whether the dismissal is for misconduct or otherwise. It only sets out the pleasure doctrine. In this view of the matter, no case made out for interference. Dismissed. "
( 4 ) BEING aggrieved by the aforesaid dismissal of the writ petition, the petitioner preferred a Special Leave Petition before the Supreme Court of India, which was registered as Special Leave Petition (C) No. 7225-33/1980. By an order dated 4. 9. 1980, the Supreme Court dismissed the Special Leave Petition preferred by the petitioner.
( 5 ) THE petitioner has now preferred the present writ petition seeking to challenge once again the said impugned order dated 3. 3. 1980 by which his services were terminated on the ground of existence of a fresh cause of action in his favour for challenging the order dated 3. 3. 1980 in view of a Full Bench decision of this court in Union of India and Ors. Vs. Ex-Major N. R. Ajwani and Ors. reported in (1994) 55 Delhi Law Times 219 holding that an order passed by the competent authority invoking the provisions of Section 18 of the Army Act could be the subject matter of judicial review and that the court could lift the veil where it appears that power was used for a collateral purpose under the cloak or garb of innocuous form of an order and determine the true character of the order under challenge.
( 6 ) IN thi
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