JUDGMENT :- This is a plaintiff's second appeal in a suit for declaration that the order of his dismissal passed by the Deputy Inspector General of Police, Western Range, was ultra vires, illegal and without jurisdiction and he continued to be in police service of Uttar Pradesh. The suit was dismissed by the trial Court and the lower appellate court confirmed on appeal the decree of the trial Court.

2. The two main questions which arise for decision in this appeal are; (1) whether the suit of the plaintiff was barred by the principles of constructive res judicata, his writ petition under Article 226 of the Constitution for similar relief having been dismissed by the High Court and (2) whether the Deputy Inspector General of Police was competent to dismiss the plaintiff from service of the Police Force of Uttar Pradesh, he being an officer below the rank of the Inspector General by whom the plaintiff was appointed as Sub Inspector of Police. Some other questions did arise in the courts below on the pleadings of the parties but I am not concerned in this appeal with those questions. The suit of the plaintiff was dismissed mainly on the finding that the Deputy Inspector General of Police would be deemed to be the authority who appointed the plaintiff as Sub Inspector of Police and the order of dismissal passed by him was valid and effective. On the issue of res judicata both the courts below decided against the defendant and held that the suit of the plaintiff was not barred by principles of res judicata.

3. I have heard Sri G. N. Upadhya, learned Junior Standing Counsel for the respondent, on the question whether the suit of the plaintiff was barred by the principles of res judicata. The plaintiff Nawab Husain filed a Civil Miscellaneous Writ No. 1759 of 1956 under Art. 226 of the Constitution in this Court. A writ in the nature of certiorari was sought for quashing of the disciplinary proceedings or the departmental proceedings taken by the Superintendent of Police, Etah against him. The petition was grounded on the allegations that the petitioner was never afforded any reasonable opportunity to meet the case against him and that the action taken against him was malicious, mala fide and for ulterior purposes. Nowhere in the petition any mention was made of the authority who appointed the petitioner as Sub Inspector nor any ground was raised that the order of dismissal was bad because it was passed by an authority inferior in rank to the authority who appointed the petitioner as Sub Inspector of Police. The learned Single Judge dismissed the writ petition on the finding that the petitioner failed to establish any lack of opportunity or mala fides of the departmental officers against him. This decision of the learned Single Judge was affirmed by a Division Bench of this Court who by an order dated 23-10-1959 dismissed the Special Appeal. Nawab Husain then instituted the suit which has given rise to this appeal against the State of Uttar Pradesh.

4. Sri Upadhya for the respondent State contended that though the validity of the order of dismissal was not questioned by Nawab Husain on the ground that the Deputy Inspector General of Police was not the appointing authority and he was lower in rank than the Inspector General of Police who actually made the appointment of the petitioner, Nawab Husain, yet this ground could have been raised by him or might have been raised by him and ought to have been raised by him in the writ petition itself. Therefore, a subsequent suit raising those grounds would be barred by principles of constructive res judicata as the relief in the two proceedings was substantially the same and based on the same cause of action. Reliance has been placed by the learned counsel on a decision of the Supreme Court in the case of Devilal Modi v. Sales Tax Officer, Ratlam, AIR 1965 SC 1150. In that case the learned Judges of the Supreme Court held that while deciding the writs even though involving violation of fundamenta

Click Here to Read the rest of this document