Shiv Dayal, J.
1. This appeal is under Clause 10 of the Letters Patent of This Court from the judgment and decree of a learned single Judge in Second Appeal No. 195 of 1965. When this appeal was placed for hearing before a Division Bench, it noticed an apparent conflict between two earlier decisions in Sharmanand v. Superintendent, Gun Carriage Factory (1960) M.P.L.J. 110 : A.I.R. 1960 M.P. 178, and Kailashchand v. G. M. Ordnance Factory (1965) M.P.L.J. 881 : A.LR. 1966 M.P. 82. Accordingly, it referred the appeal to a larger Bench. The whole appeal is before us. We have heard learned Counsel for the appellants (Union of India and the Superintendent, Gun Carriage Factory) and the learned Counsel for Sharmanand respondent, on all questions involved in the appeal.
2. The plaintiff-respondent was a turner in the employment of the Gun Carriage Factory, Jabalpur. The factory is owned by the Union of India and is administered by the Ministry of Defence of the Union Government. On September, 1958, the plaintiff was served with a charge-sheet containing the following charges: (1) On the night of August 25, 1958, he scaled the walls of the Tool Godown Machine Shop and thus attempted to commit theft of the employer's property. (2) While he was engaged in committing theft, he realised that the attempt to commit theft was exposed and he made good his escape quickly through the verandah. (3) In doing so, heunauthorisedly left his section in an abnormal way. (4) On the said night, he unauthorisedly absented from the section from 12.00 hours to implement his planned attempted theft. An enquiry was held against the plaintiff. The said charges were held proved against him. He was removed from service on December 9, 1958.
3. The plaintiff approached the High Court under Article 226 of the Constitution by a writ petition for quashing the order of his removal : Sharmanand v. Superintendent, Gun Carriage Factory, (Jabalpur supra). On August 7, 1959, that petition was allowed and the removal was quashed, solely on the ground that copies of earlier statements of certain witnesses were not supplied to the plaintiff. It was, however, observed that the department would not be precluded from continuing the enquiry or holding a fresh enquiry against the petitioner on the same charges.
4. On August 25, 1959, the plaintiff was asked to report on duty. However, on August 29, 1959, he was again suspended. A fresh enquiry was held on the same charges. As a result of the fresh enquiry, he was found guilty of the charge of gross misconduct and was removed from service with effect from December 3, 1960.
5. The plaintiff then filed the suit in the Civil Court, from which this Letters Patent appeal has arisen. It was alleged that in the departmental enquiry neither the provisions of Article 311 of the Constitution, nor the principles of natural justice, nor the observations in the judgment in the writ petition regarding rules of evidence, were followed by the enquiry officer. The defendants, Union of India and the Superintendent, Gun Carriage Factory, Jabalpur, resisted the suit.
6. The trial Court dismissed the suit. The plaintiff preferred an appeal which was dismissed by the 3rd Additional District Judge, Jabalpur. Two questions were raised before him: (1) Whether Article 311 of the Constitution was applicable to the present case; and (2) whether the decision of the departmental enquiry and the effect given to it by the respondent was justiciable issue before the civil Court. The learned Judge of the first appellate Court held that Article 311 was not applicable. He further held that the termination of the service of the plaintiff was not a justiciable issue.
7. The plaintiff preferred a second appeal (Second Appeal No. 195 of 1965) which was decided by the learned single Judge. He held that the effect of the judgment in the previous writ petition was to decide that an order of removal on the charges that were levelled in the first inquiry would be illegal if the inquiry preceding removal did not conform to the rules of natural justice. He held that the above decision in Sharmanand v. Superintendent, Gun Carriage Factory, Jabalpur (1960) M.P.L.J. 110 : A.I.R. 1960 M. P. 178, operated as res judicata in this suit. He, therefore, allowed the appeal, set aside the judgment and decree of the first appellate Court, and remanded the case to that Court for a fresh decision of the appeal. Thus the learned single Judge, in setting aside the judgment and decree of the first appellate Court, made an order of remand directing a fresh decision after scrutiny whether there was violation of the principles of natural justice in the second departmental enquiry. The learned single Judge declared the case fit for Letters Patent Appeal. Aggrieved by the judgment of the learned single Judge, the defendants preferred this appeal.
8. The substance of the plaintiff's suit is (1) that the provisions of Article 311 of the Constitution were not followed ; and (2) that principles of natural justice were not followed in the departmental enquiry.
9. In our opinion, the suit was untenable and misconceived. The plaintiff as a turner held a civilian post which was connected with the defence and for which he was paid salary from the defence estimates. The Gun Carriage Factory is owned by the Defence Department of the Union Government. An employee, holding a civilian post connected with defence, for which he is paid salary from the defence estimates, is outside the purview of Article 311 of the Constitution. To such an employee, the protection under that article is not available. Nor is such an employee entitled to invoke the principles of natural justice under the general law of master and servant. Both these propositions are laid down by the Supreme Court in Lekh Raj v. Union of India A.I.R. 1971 S.C.2111.
10. Learned Counsel for the respondent, however, strenuously contends that so far as the present suit is concerned, it is not open to the Court to say that the plaintiff is not entitled to the protection of Article 311 of the Constitution, or that he is not entitled to invoke the principles of natural justice. It is urged, that the earlier decision in the writ petition Sharmanand v. Superintendent, Gun Carriage Factory, Jabalpur (supra) between the same parties, operates as res judicata. This Court is, therefore, precluded from applying the dicta of the Supreme Court decision in Lekh Raj's case (supra), to this suit. It is maintained for the respondent that since a writ was issued in that earlier petition and the removal of the plaintiff was quashed on the ground that it was in violation of a principle of natural justice, even if the decision in that writ petition has subsequently been discovered to be erroneous in view of the Supreme Court decision in Lekh Raj's case still that judgment is binding on the parties as also the Court, because it operates as res judicata.
11. In our opinion, the respondent's contention cannot be accepted. We have perused the judgment in the writ petition. We do not find that Article 311 of the Constitution was at all referred to by the learned Judges. Nowhere in the judgment is any mention of that article. It is a reported decision : Sharmanand v. Superintendent, Gun Carriage Factory, Jabalpur (supra). It is only in the head note of the report that Article 311 is mentioned.
12. So also we do not find anywhere in the judgment that the question whether the principles of natural justice can be invoked by a servant to whom the protection under Article 311 of the Constitution is not available, was either decided, canvassed or considered. Lord Romilly said in Jenkins v. Robertson (1967) L.R. 1 H.L. 117:
Res judicata, by its very words, means a matter upon which the Court has exercised its judicial mind and has come to the conclusion that one side is right and has pronounced a decisionaccordingly.... In my opinion res judicata signifies that the Court has, after argument and consideration, come to a decision on a contested matter.
13. What is contended is that although in the writ petition it may not have been said expressly that the principles of natural justice were applicable to the plaintiff, it was necessarily assumed because without that assumption the writ could not be issued.
14. It is true that in the writ petition, the right of the plaintiff to have copies was conceded on the ground that it was based on principles of natural justice. But what is res judicata is the 'matter decided' and not the reason for such decision. See Mysore State E. Board v. Bangalore W.C. & S. Mills A.I.R. 1963 S.C. 1128, where their Lordships have said as follows:
The decision does not operate as res judicata so as to prevent the petitioners from raising subsequently a dispute if any as to the revised rates and calling for an arbitration under Section 76 of the 1948 Act. It is indeed true that what becomes res judicata is the 'matter' which is actually decided and not the reason which leads the Court to decide the 'matter'.
15. It is plain enough from the decision of the writ petition that the Division Bench was not asked to apply its mind to the question whether the principles of natural justice could be applied to a case of master and servant. At the highest, it can be argued that on the principles of constructive res judicata, it must be deemed that that question was raised and decided against the defendants. In our opinion, that argument has no force. When a matter, which has been heard and finally decided in a writ petition, is again raised in a suit, between the same parties, the principle of res judicata may come into play, but it is not a case where the provisions of Section 11 of the Code of Civil Procedure are, in terms, attracted. Invoking the principle of res judicata as based on sound public policy is quite different from applying the provisions of Section 11 of the Code of Civil Procedure.
16. It must be remembered that the rule of constructive res judicata is a special creature of Section 11 of the Code of Civil Procedure and has to be restricted in its application to suits to which the Code of Civil Procedure applies. It is only the general principle of res judicata which is applied to writ petitions, but constructive res judicata, which is a special and artificial creation of res judicata, enacted by that section of the Code of Civil Procedure, cannot generally be applied to writ petitions. Therefore, where a question of law was not specifically decided in a writ petition, it cannot operate as constructive res judicata in a subsequent suit on the ground that that point must be deemed to have been raised in the petition and decided against the party who lost in those proceedings. In Amalgamated Coalfields v. Janpada Sabha 1963 M. P. L. J. Note 207 : (1963) 3 S.C.D. 485 (501), it is said:
In our opinion, constructive res judicata which is a special and artificial form of res judicata enacted by Section 11 of the Civil Procedure Code should not generally be applied to writ petitions filed under Article 32 or Article 226.
17. The plaintiff's plea of bar of res judicata must be rejected on yet another ground. Whether the Court could give relief on the principles of natural justice is a pure question relating to the jurisdiction of the Court. A question may be one of fact, or a mixed question of law and fact, or a pure question of law. The principle of res judicata can apply to a decision, right or wrong, in respect of a question of fact, or a mixed question of law and fact, but where the question is one purely of law and it relates to the jurisdiction of the Court, the party affected by the decision cannot be precluded from subsequently challenging the validity of that order. The decision of a Court in the same suit or another cannot confer jurisdiction on the Court, which it has not. If the Court, by an erroneous decision, assumes jurisdiction which it does not possess, the question cannot operate as res judicata, whether cause of action in the subsequent litigation is the same or otherwise. In M.P.S. Jaiswal v. D.N.S. Jeejeebhoy (1970) 1 S.C.C. 613 (see page 619), Mr. Justice J. C. Shah, speaking for the Court, laid down thus:
A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlierjudgment... where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.
18. When the law expressly lays down that the principles of natural justice will not apply to disciplinary proceedings against a certain class of employees, the Court has no jurisdiction to apply the principles of natural justice to any such proceedings. The decision of the Supreme Court in Lekh Raj's caseA.I.R 1971 S.C. 2111, is that the principle of natural justice cannot be invoked by a servant other than one to whom Article 311 of the Constitution applies. The decision of the Supreme Court is the law of the land. It must, therefore, be said that when the High Court allowed the writ petition on the ground that the petitioner had a right to obtain copies, on the principles of natural justice, it assumed the jurisdiction to apply the principles of natural justice to the case of the petitioner, although he was not within the ambit of Article 311 of the Constitution. Therefore, the 'assumption' that the principles of natural justice applied to the plaintiff, cannot operate as res judicata.
19. The Supreme Court held in Lekh Raj's case (supra) that a person holding a civilian post connected with Defence, is protected under the Civilians in Defence Service (Temporary Service) Rules, 1949. He can challenge his termination on ground of non-compliance with the provisions of the rules. But, in the present case, the plaintiff's suit was not founded on breach of any statutory rule relating to the conditions of his service. His suit is based on non-compliance with provisions of Article 311 of the Constitution and non-observance of the principles of natural justice. If he desired to frame his suit on the basis of breach of any departmental rule, he ought to have come forward with specific averments in the plaint stating which rule had been infringed and how. Without specific pleadings, an argument based on breach of service rules, is an afterthought.
20. The conclusions we have reached may be summed up thus: (1) An employee, holding a civlian post connected with the defence, for which he is paid salary from the defence estimates, is outside the purview of Article 311 of the Constitution. To such an employee the protection under Article 310 is not available. (2) To an enquiry connected with disciplinary action against such an employee, the principles of natural justice do not apply. (3) Such an employee can challenge the termination of his employment on ground of non-compliance with the provisions of the Civilians in Defence Service (Temporary Service) Rules, 1949. Where an employee complains of breach or non-observance of those rules, he must plead that case and, if denied, prove it. (4) When a question is not specifically decided in a writ petition and the decision does not show that the Court had applied its mind to that question, it cannot operate as res judicata in a subsequent suit on the ground that the decision of that question is implicit in another question which was actually decided in the writ petition. (5) Where the Court assumes jurisdiction which it does not possess, or erroneously decides a question relating to the jurisdiction of the Court, in neither case the decision operates as res judicata in a subsequent litigation between the same parties, whether the cause of action is the same or different.
21. The appeal is allowed. The judgment and order of remand of the learned single Judge are set aside. The judgment and decree of the first appellate Court are restored. The suit is dismissed. However, in the circumstances of the case, we direct that the parties shall bear their own costs in all the Courts.