# [1968] 2 S.C.R. 887

- **Citation:** [1968] 2 S.C.R. 887
- **Court:** Supreme Court of India
- **Decided:** 1968-01-31
- **Bench:** 1. C. Shah, V. RAMAswAMI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1968-2-s-c-r-887-4256
- **Pages:** 5

## Headnote

Res Judicata-Petltion under A.rt. 226 allowed by single Judge o/ High
CouN on twn groumh-Division Bench· dismissing petition by advene/y
deciding first ground Olld not considering second ground-Second growul
whether can be basis of civil suit-Whether barred by re&<judicata,
The respondCJ1t was a temporary Field Inspector of the Office of the
Custodian of Evacuee Property, Delhi.
By an order passed in Januaey
1958 the Additional Settlement Commissioner, Mr. Kane, who wu also
holding the office of Additional Custodian terminated the employment of
the respondent after giving him one month's salaey in lieu of notice. The
order was confirmed by the departmental authorities in appeal. The respondent filed a writ petition in the High Court on two grounds, namely :
(i) that the order terminating the employment amounted to punishment
and could not be made without affording opportunity to be heard; (ii)
that Mr. Kane was not competent under s. 5 of the Central Services
(Temporary Service) Rules, 1949 to pass the order. The single Judge
who heard the petition upheld both the grounds and granted the petitilJn.
In appeal, the Division Bench reversed the order and dismissed the peti•
lion observing that the order in question did not amount to punishment.
The Division Bench observed that the second point was not before them,
because arguments were advanced mainly on the first rint and on a decimon of tho first point the appeal. could he disposed o . The respondents
petition under Act. 136 of the Constitution for special leave to appeal to
this Court was dismissed. The respondent thereafter instituted a suit in
the Civil Court. The trial Court dismissed the suit but the first appellate
court held that the order terminating the respondent's serviee was void.
A second appeal by the Union of India was dismissed by the High Court
on the view that the order of termination of services was passed by an
incompetent authority and this issue was not barred by res judicata. The
Union of India appealed.
d''
HELD : The single Judge who decided the respondent's W[lf"petition
decided both the grounds in his favour. When in appeal the.High Court
reversed the judgment and dismissed the petition it must be deemed to
have rejected both the grounds on which the petition was founded.
In
rejecting the fil'!t plea the High Court gave detailed reasons. The second
plea must also be deemed to have been negatived by the High Court. for
the High Court could not, without reversing the judgment of the single
Judge, on that plea have dismissed the petition. The suit was therefore
barred by res judlcata.
It could not be said that the High Court reserved to the respondent
the right to agitate the question about the authority of Mr. Kane to pass
the order. in a separate suit. There was no snch express reservation and
it could not be implied, for such an implication was plainly inconsistent
with the final order passed by the High Court.
Gukibchand Chhota/al Parikh v. State of Gujarat, A.I.R. 1965. S.C
II 53, referred to.
Abdul/ah Ashgar Ali Khan v. Gnnesh Dass, A.I.R. 1917 P.C. 201.
held not applicable.
1.3 Sup Cl/63-14
SSS
~vl'REML COURT REPORTS
[ 1968) 2 S.C.R.

## Text

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UNION OF INDIA
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NANAK SINGH
January 31, 1968
(1. C. SHAH AND V. RAMAswAMI, JJ.]
Res Judicata-Petltion under A.rt. 226 allowed by single Judge o/ High
CouN on twn groumh-Division Bench· dismissing petition by advene/y
deciding first ground Olld not considering second ground-Second growul
whether can be basis of civil suit-Whether barred by re&<judicata,
The respondCJ1t was a temporary Field Inspector of the Office of the
Custodian of Evacuee Property, Delhi.
By an order passed in Januaey
1958 the Additional Settlement Commissioner, Mr. Kane, who wu also
holding the office of Additional Custodian terminated the employment of
the respondent after giving him one month's salaey in lieu of notice. The
order was confirmed by the departmental authorities in appeal. The respondent filed a writ petition in the High Court on two grounds, namely :
(i) that the order terminating the employment amounted to punishment
and could not be made without affording opportunity to be heard; (ii)
that Mr. Kane was not competent under s. 5 of the Central Services
(Temporary Service) Rules, 1949 to pass the order. The single Judge
who heard the petition upheld both the grounds and granted the petitilJn.
In appeal, the Division Bench reversed the order and dismissed the peti•
lion observing that the order in question did not amount to punishment.
The Division Bench observed that the second point was not before them,
because arguments were advanced mainly on the first rint and on a decimon of tho first point the appeal. could he disposed o . The respondents
petition under Act. 136 of the Constitution for special leave to appeal to
this Court was dismissed. The respondent thereafter instituted a suit in
the Civil Court. The trial Court dismissed the suit but the first appellate
court held that the order terminating the respondent's serviee was void.
A second appeal by the Union of India was dismissed by the High Court
on the view that the order of termination of services was passed by an
incompetent authority and this issue was not barred by res judicata. The
Union of India appealed.
d''
HELD : The single Judge who decided the respondent's W[lf"petition
decided both the grounds in his favour. When in appeal the.High Court
reversed the judgment and dismissed the petition it must be deemed to
have rejected both the grounds on which the petition was founded.
In
rejecting the fil'!t plea the High Court gave detailed reasons. The second
plea must also be deemed to have been negatived by the High Court. for
the High Court could not, without reversing the judgment of the single
Judge, on that plea have dismissed the petition. The suit was therefore
barred by res judlcata.
It could not be said that the High Court reserved to the respondent
the right to agitate the question about the authority of Mr. Kane to pass
the order. in a separate suit. There was no snch express reservation and
it could not be implied, for such an implication was plainly inconsistent
with the final order passed by the High Court.
Gukibchand Chhota/al Parikh v. State of Gujarat, A.I.R. 1965. S.C
II 53, referred to.
Abdul/ah Ashgar Ali Khan v. Gnnesh Dass, A.I.R. 1917 P.C. 201.
held not applicable.
1.3 Sup Cl/63-14
SSS
~vl'REML COURT REPORTS
[ 1968) 2 S.C.R.
CIVIL APPELLATE JURISDICTION : Civil Appeal No; 280 of
A
1967.
Appeal by special leave from the judgment and order dated
September 29, 1966 of the Punjab High Court Circuit Bench at
Delhi in Regular Second Appeal No. 74-D of 1966.
B. Sen, R. N. Sachthey and S. P. Nayar, for the appellant.
Pritam Singh Safeer, for the respondent.
The Judgment of tile Court was delivered by
Shah, J.
Nanak Singh-respondent in this appeal-held in
August 1957 the post of Field Inspector in the Office of the
Custodian, Evacuee Property,
Delhi, as a temporary employee.
By order dated January 10, 1958, K. S. Kane, Additional Settlement Commissioner who was also holding the office of Additional
Custodian terminated the employment of the respondent. after
giving him one month's salary in lieu of notice.
The order of
Mr. Kane was confirmed in appeal.
Nanak Singh then moved the High Court of Punjab by a petition under Art. 226 of the Constitution for an order dcclarin)!
that the determination of his employment was "void, illegal and
unconstitutional" on two grounds-( I) that the order terminating
the employment amounted to imposing punishment and could not
be made without affording opponunity to the employee to show
cause against the action proposed to be taken in regard to him:
and (2) that Mr. Kane was not competent under r. 5 of the
Central Civil Services (Temporary Services) Ru!es. 1949 to terminate his employment.
Gurdev Singh, J.,
upheld
both
the
grounds and granted the petition.
The Hi~h Court of Punjab in
appeal reversed that order and directed that the petition be dism1 .. ,~d. The High Couri observed that by the order determining
the employment of Nanak Singh no punishment was imposed. Jn
dea!ing with the authority of Mr. Kane to terminate the employment of 1'.anak Singh the High Court observed :
"Jn the second place it was urged that the Officer
who had passed the order of dismissal was not competent
to do so.
The second point is not before us because
arguments have been advanced mainly on the first point
and on a decision of this point the appeal can be disposed of."
A petition preferred to this Court against the order of the High
(;ourt for leave to appeal under Art. 136 of the Constitution was
rejected.
Nanak Singh thereafter instituted suit No. 218 of 1963 in the
Court of the Senior Sub-Judge, Delhi, for a declaration that the
order terminating his employment was made by an authority lower
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UNION v. NANAK SINGH (Shah, J.)
889
than the authority competent to pass that order, and that the order
was "wanting in bona fides" and was on that account "illegal, null
and void", and for an order declaring him entitled to be treated
as continuing in employment and on duty and entitled to all the
benefits of service as if he had not been removed from employment.
This suit was dismissed by the Court of First Instance.
In appeal; the Additional District Judge, Delhi, reversed the decree
passed by the Court of First Instance, and declared that the order
of Mr. Kane dated January 10, 1958, terminating the employment of Nanak Singh was void and inoperative, and that Nanak
Singh was entitled to be treated as in service and on duty since
the date of the order.
A second appeal against that judgment
by the Union of India was dismissed by Bedi, J.
The learned
Judg~ was of the view that the judgment of the Division Bench
of the High Court in the writ petition did not operate to prevent
Nanak Singh from reagitating the question about the authority
of Mr. Kane to terminate his employment, and that on the materials placed before the Court there was no evidence that authority
had been delegated to Mr. Kane to exercise that power. Against
that order, with special leave, the Union of India has appealed to
this Court.
The first question which falls to be determined in tl1is appeal
is whether the judgment of the High Court in the writ petition
operated as res judicata in the Civil Suit filed by Nanak Singh.
Nanak Singh, it may be recalled, claimed relief on two alternative
grounds-( 1) infringement of the protection under Art. 311 of
the Constitution; and (2) absence of authority' in the Officer who
terminated his employment under r. 5 of the Central Civil Services
(Temporary Service) Rules, 1949. Each ground, if successful.
was sufficient to support an order in his favour. Gurdev Singh, J ..
decided both the grounds in favour of Nanak Singh. The High
Court reversed the judgment of Gurdev Singh, J., and dismissed
the petition filed by Nanak Singh : thereby the High Court must
be deemed to have rejected both the grounds on which the petition
was founded.
On the plea that the order of termination of his
employment amounted to dismissal, the High Court gave detailed
reasons and observed that by the termination of his employment
Nanak Singh was not visited with any punishment. The second
plea about the authority of Mr. Kane also must be deemed t0
have been negatived by the High Court, for the High Court could
not, .without reversing the judgment of Gurdev Singh, J., have dis--
missed the petition.
It is true that in the judgment of the Court
of Appeal some obscure statement has been made, and it is difficult to appreciate the true purport thereof.
But what operates
as res judicata is the decision and not the reasons given by the
Court in support of the decision.
We are unable to agree with
counsel for Nanak Singh, that the High Court reserved to Nanak
890
SUPREME COURT REPORTS
[1968) 2 S.C.R.
Singh the right to agitate the question about the authority of Mr.
Kane in a separate suit.
There is n~ such express reservation.
and it cannot be implied, for such an implication is plainly incoasistent with the final order passed by the High Court. Even assuming that the High Court was in error in holding that the appeal
could be decided oitly on the first point, the order dismissing the
petition must still operate as res judicata in respect of both the
points on which the petition was founded.
This Court in Gulabchand Chhota/a/ Parikh v.
State· of
Gujarat(') observed that the provisions of s. 11 of the Code of
Civil Procedure are not exhaustive with respect to an earlier
decision operating as res judicata between the same panics on the
same matter in controversy in a subsequent regular suit, and on
the general principle of res judicata, any previous decision on a
matter in controversy, decided after full contest or after a.ftording
fair opportunity to the parties to prove their case by a Court oompetent to decide it, will operate as res judicata in a subsequent
regular suit.
It is not necessary that the Court deciding the
matter formerly be competent to decide the subsequent suit or that
the former proceeding and the subsequent suit have the same
subject-matter. There. is no good reason to preclude such decisions on matters in controversy in writ proceedings under Art. 226
or Art. 32 of the Constitution from operating as res judicata in
subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decision after full contest. The Court in
Gu/abchand's case(') left open the question whether the principle
of c0nstructive res judicata may be invoked by a party to the subsequent suit on the ground that a matter which might or ought
to have been raised in the earlier proceeding but was not so raised
therein, must still be deemed to have been decided.
If the order of the High Court in appeal from the order in
the writ petition operated constructively as res judicata, it might
have been necessary to consider the question which was left open
by ~
Court in Gulabchand's case('). But in our view the judgment in the previou~ case operates by express decision as res
;udicara.
It is true that in order that the previous adjudication
between the parties may operate as res judicata, the question must
have been heard and decided or that the parties m11St have an
opportuntiy of raising their contentions therein.
Jn the present
case, Gurdev Singh, J .. dealt with the question in some detail and
held that Mr Kane had no authority to terminate the employment
of Nanak Singh.
The High Court in appeal thought that the
~ppeal could be disposed of only on the first ground, and they
recorded no express finding on the second ground. But once the
ti) A. I. R. 1%~ S. C. 1153.
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UNION v. NANAK SINGH (Shah, J.)
891
appeal was allowed and the petition was dismissed, the dismissal
of the petition operated as a rejection of both the grounds on which
it was .founded.
The judgment of the Privy Council on which
reliance was placed by counsel for Nanak Singh-. Abdullah Ashgar
Ali Khan v. Ganesh Dass('), has, in our judgment, r.o application.
In that case a suit was dismissed by the Court of the Judicial
Commissioner on the view that its constitution was defective, and
no opinion on the merits of the dispute between the parties was
expressed.
The judgment of the Judicial Commissioner was held
not to operate as res judicata in a subsequent suit between the
parties to the previous suit, because the dispute was not decided
on its merits in the previous suit expressly or even by implication.
It is unnecessary on that view to adjudicate upon the question
whether Mr. Kane had authority to determine the employment of
N auak Singh.
The appeal is allowed and the decree passed by the ·High
Court is set aside.
The decree passed by the Court of First
Instance is restored.
When special leave to appeal was granted to the Union, this
Court passed an order that the Union of India will pay the costs
of the appeal in any event. The Union of India must, therefore,
pay the costs of the tespondent iri this appeal. There will be no
order as to costs in the Court of the First Instance, the District
Court and the High Court.
G.C.
Appeal allowed .
(I) A.I.R. 1917 P.C. 201.