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PUNJAB & HARYANA HIGH COURT
Bal Raj Tuli, S.S.Sandhawalia and M.R.Sharma JJ.
State Of Punjab
Versus
Nand Kishore
First Appeal No. 156 of 1965,
Decided On : MAY 8, 1974
RES JUDICATA - COMPULSORY RETIREMENT - VALIDITY OF RULE - SUBSEQUENT DECLARATION OF UNCONSTITUTIONALITY - EFFECT - WRIT PETITION DISMISSED ON ASSUMPTION OF VALIDITY - SUBSEQUENT SUIT - WHETHER BARRED.
Fact of the Case:
The respondent, an Assistant in the Food Distribution Branch of the Punjab Civil Secretariat, was compulsorily retired from service by an order passed under Rule 5.32(b) of the Punjab Civil Services Rules, Volume II. He challenged the order in a writ petition, which was dismissed by a Division Bench of the High Court on the ground that the impugned rule was valid. Subsequently, the Supreme Court declared Rule 9.1 of the Pepsu Regulations, which was similar to Rule 5.32 of the Punjab Civil Services Rules, as unconstitutional. The respondent then filed a suit for a declaration that the order of his compulsory retirement was invalid and for arrears of salary. The State of Punjab contended that the suit was barred by the principle of res judicata.
Finding of the Court:
The Full Bench of the High Court held that the decision in the writ petition did not operate as res judicata in the subsequent suit. The Court observed that the decision in the writ petition was based on the assumption that Rule 5.32 of the Punjab Civil Services Rules was valid, but this assumption was subsequently overturned by the Supreme Court's decision. The Court further held that a decision on a pure question of law, such as the interpretation of a statute, could not operate as res judicata between the same parties where the cause of action was the same. The Court also noted that the principle of res judicata could not be applied to a fundamentally lawless order, such as an order passed under an unconstitutional rule.
Issues: 1. Whether the decision in the writ petition operated as res judicata in the subsequent suit? 2. Whether a decision on a pure question of law could operate as res judicata between the same parties where the cause of action was the same? 3. Whether the principle of res judicata could be applied to a fundamentally lawless order?
Ratio Decidendi: 1. The decision in the writ petition did not operate as res judicata in the subsequent suit because it was based on the assumption that Rule 5.32 of the Punjab Civil Services Rules was valid, but this assumption was subsequently overturned by the Supreme Court's decision. 2. A decision on a pure question of law, such as the interpretation of a statute, could not operate as res judicata between the same parties where the cause of action was the same. 3. The principle of res judicata could not be applied to a fundamentally lawless order, such as an order passed under an unconstitutional rule.
Final Decision: The suit was not barred by the principle of res judicata and the respondent was entitled to a declaration that the order of his compulsory retirement was invalid and to arrears of salary.
S.S.Sandhawalia, J.
1. The complexities of the practical application of the otherwise settled principles of constructive res judicata have necessitated this reference to the Full Bench. The question for determination has been formulated in the following terms:-
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"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?"
The facts are not in dispute and a brief marshalling thereof with particular reference to the issue of law involved, therefore, suffices. Pt Nand Kishore, respondent, was employed a an Assistant in the Food Distribution Branch of the Punjab Civil Secretariat when he was compulsorily retired from service by an order in the following terms:-
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"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 Sd/- E.N. Mangat Raj, Dated : The Chief Secretary to Govt. 6th January, 1961. Punjab"
2. Against the abovesaid order the respondent represented to the higher authorities but no relief was apparently granted. He also submitted a memorial to the Governor but was informed on the 9th June, 1961, that the same had been considered and rejected.
3. Nand Kishore respondent then moved Civil Writ No. 1061 of 1961 praying for the quashing of the order dated the 6th of January, 1961, retiring him compulsorily. This writ petition came up before a Division Bench consisting of I. D. Dua and Tek Chand, JJ. The learned Counsel for the respondent assailed the impugned order of compulsory retirement before the Bench on a variety of grounds. The Division Bench in a lucid and detailed judgment referred to all the points raised on behalf of the petitioner and repelling the same dismissed the writ petition on the 5th February, 1962. Consequently the impugned order of compulsory retirement of the 6th January, 1961, was upheld. Admittedly no appeal was taken against the decision of the Division Bench.
4. On the 24th of February, 1964, the respondent filed a suit in the Court of the Senior subordinate Judge, Patiala, for a declaration that the order dated the 6th January 1961, compulsorily retiring him was invalid and that he continued to be in the service of the Punjab Government enjoying all the necessary rights and benefits thereof. An amended plaint date the 28th of May, 1964, was allowed to be filed in order to enable him to claim the additional relief regarding the payment of arrears of pay to the respondent. In the written statement filed in the suit by the State of Punjab it was inter alia pleaded that the suit was barred by the principles of res judicata because the matter had been heard and finally disposed of by the Division Bench judgment of the Punjab High Court, in Civil Writ No. 1061 of 1961. On the pleadings eight issues were struck by the trial Court but for the purpose of this case reference to the two issues Nos. 3 and 4 in the following terms suffices:-
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3. Whether the suit is barred by res judicata?
4. Whether the order dated 6th January, 1961, of the compulsory retirement of the plaintiff is illegal, void, without jurisdiction, inoperative, mala fide, unconstitutional and unauthorised? If so, with what effect?
The trial Court arrived at the following cryptic finding on Issue No. 3:--
"The plaintiff had filed a writ petition in the High Court. Copy of the judgment is Exhibit D, 4. The view of our High Court is that judgment in writ petition does not operate as res judicata. I decide this issue against the defendant."
On Issue
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