2002 Supreme(MP) 1050

Dipak Misra and A.K. Shrivastava, JJ.
Jagdamba Prasad Soni v. State of M.P.
W.P. No. 5080 of 1999 (J); Decided on 7.11.2002. *

Headnote:(1) Civil P.C., 1908 -- S. 11 -- res judicata -- previous case dismissed in default or on technical mistake or for want jurisdiction -- does not amount res judicata in subsequent proceedings.

        (2) Civil P.C., 1908 -- S. 11 -- res judicata -- doctrine applies when previous case has been adjudicated in stricto sensu.

        (3) Age -- may be ascertained from matriculation certificate -- for purposes of retirement it should be seen whether matriculation was passed while in service.

        ¼1½ flfoy izfdz;k lafgrk] 1908 && /kkjk 11 && iwoZ U;k; && iwfoZd ekeyk O;fDrdze esa ;k rduhdh Hkwy ij ;k vf/kdkfjrk ds vHkko esa [kkfjt fd;k x;k && i‘pkr~orhZ dk;Zokfg;kas ls iwoZ U;k; dh dksfV dk ugha gksrkA

        ¼2½ flfoy izfdz;k lafgrk] 1908 && /kkjk 11 && iwoZ U;k; && tc iwfoZd ekeyk lqfuf‘pr rkRi;Z esa U;k;fu.khZr gksrk gS rHkh fl)kar ykxw gksrk gSA

        ¼3½ vk;q && eSfVªdqys‘ku izek.ki= ls vfHkfuf‘pr dh tk ldrh gS && lsokfuo`fRr ds iz;kstu ds fy, ;g ns[kk tkuk pkfg, fd D;k eSfVªdqys‘ku lsok esa jgrs gq, mRrh.kZ fd;k FkkA

        Shrivastava, J. -- By this petition, filed under Article 227 of the Constitution of India, the petitioner has challenged the order dated 8.2.1999 (Ann. A) passed in Original Application No. 3824/93 and order dated 26.3.1999 (Ann. B) passed in M.A.No. 145/99, by the M.P. Administrative Tribunal at Jabalpur.

        According to the petitioner, he was serving on the post of First Grade Clerk in the Office of Assistant Engineer PWD Sub-Division No. V, Rewa. His date of birth was recorded as 13.12.1935. A representation dated 14.9.1993 was submitted by him, indicating therein, that his date of birth has been wrongly recorded as 13.12.1935, though, it should be 5.12.1936. He has further stated that in the service book his date of birth was recorded as 5.12.1936 which has been changed 10 13.12.1935.

        It has been further pleaded by the petitioner, that in his matriculation certificate, his date of birth 13.12.1936 has been mentioned.

       The respondent No. 2 vide its letter dated 4.10.1993, directed the petitioner to produce his original mark sheet. Thereafter, by the order dated 23.10.1993, he was informed that he would retire on 31.12.1993.

       

        The petitioner was intimated vide letter dated 22.11.1993 to produce original certificates of his date of birth, as he failed to produce the original certificate, regarding his date of birth, his representation was rejected.

       

        The petitioner filed Original Application before the M.P. State Administrative Tribunal, Jabalpur which was registered as O.A. No: 3824/93 seeking relief therein that he should have been retired on 13.12.1994 and not on 31.12.1993.

        Before the Tribunal the State opposed the prayer, by filing the return.

       The stand of the State in the return was that earlier to the filing of the original application before the Tribunal, the petitioner had filed a case in the Labour Court at Rewa, for the correction of his date of birth which was dismissed indefault on 22.8.1997, therefore, now his claim could not be considered.

        The Tribunal, dismissed the original application, holding that the petitioner has. not come with clean hands, as he did not plead any averments regarding the dismissal of his prayer, by the Labour Court. According to the Tribunal, the case filed by the petitioner in the Labour Court was dismissed in default, which amounts to, resjudicata as a result of which the present original application deserves to be dismissed and the same was rejected as such.

        A review petition was filed by the petitioner before the Tribunal, which was registered as M.A. No. 145/99. In the said review petition, it was contended, on behalf of the petitioner, that the petitioner being an employee of PWD, is not governed by the Labour Laws and, therefore, the Labour Court was not having jurisdiction in the matter, as such, the order of Labour Court would not amount to res judicata. The argument did not impress the Tribunal and for the reasons stated in the Order dated 26.3.1999, (Ann.-B), the review application was rejected in limine.

       Therefore, the petitioner has come before this Court.

        We have heard Mr. Parag Chaturvedi, learned counsel for the petitioner and Shri Hemant Shrivastava, learned Government Advocate for the respondent-State.

        The sole ground on which the Tribunal has declined to grant the relief to the petitioner is that his case was dismissed in default by the Labour Court vide order dated 22.8.1997, which amounts to res judicata. This approach of the Tribunal is wholly unwarranted and unsustainable in law.

       The Supreme Court in the case of Ram Gohinda v. Bhakta Bala AIR 1971 SC 664, has held that the case dismissed in default or for want of jurisdiction does not operate as res judicata in the subsequent suit. That being the position, the order impugned (Annexure-A) cannot be sustained and has to be quashed.

       For the applicability of the doctrine of res judicata, the matter must have been adjudicated in "Stricto Sensu" in earlier litigation. The former order of the Labour Court was passed, dismissing the case of the petitioner in default. Admittedly, the matter was not adjudicated on merits. If the forner case is dismissed for want of jurisdiction or for default or on the ground of technical mistake, the decision being not on merits would not be res judicata in the subsequent proceeding. (See Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332.) Thus, in our considered view the order of Tribunal holding that the order of Labour Court dismissing the case of petitioner in default, amounts to res judicata, is contrary to law. Therefore, we have no option except to quash the impugned order (Ann. A). As we have quashed this order, another order of Tribunal dated 26.3.1999 Annexure-B dismissing the review petition cannot be sustained and it also stands quashed.

       

        Looking to the facts and circumstances of the present case, instead of remitting the case back to the Tribunal, in the interest of justice, we direct the Executive Engineer (W) PWD Division, Rewa, to decide the dispute of the Petitioners claim regarding his date of birth, by considering his date of birth recorded in his matriculation certificate. Let the dispute be decided within a period of four months from the date of filing of the certified copy of this order by the petitioner. While deciding the dispute, the Executive Engineer should also see whether the petitioner had passed the matriculation examination after joining the service, or prior to that and pass necessary orders keeping in view the facts in entirety.

        In view of the aforesaid discussion, the order impugned Annexure-A and Annexure-B passed by the M.P. State Administrative Tribunal dated 8.2.1999 and 26.3.1999 are hereby quashed. The writ petition stands disposed of with the aforesaid directions. Parties to bear their respective costs.