G.K. Misra, J.
1. Plaintiff was Sub-Deputy Collector in the permanent cadre of the Orissa Subordinate Administrative Service, He was removed from service by the defendant-respondent by its order dated 8 December 1954 on a charge of bribery, The order of removal was set aside by the High Court on 4 November 1957 in Original Jurisdiction Case No. 339 of 1956. The order of the High Court was set aside by the Supreme Court on 10 December 1958. Plaintiff subsequently filed another writ application in the High Court on the allegation that certain matters had not been considered in the earlier writ application. This was withdrawn on 7 September 1960. The suit is filed for a declaration that the order of removal of the plaintiff passed by the defendant on 8 December 1954 is illegal and inoperative in law, the plaintiff is to be deemed to continue in service under the defendant and for recovery of arrears of salary.
2. The order of removal was challenged in the plaint on various grounds which need not be mentioned in detail as, before us, it is challenged on two grounds only. Those are:
(1) the plaintiff was not given personal hearing by the defendant before the order of removal was passed; and
(2) the finding of the tribunal was based on the evidence of witnesses who are not mentioned in the charge and plaintiff had no adequate opportunity of cross-examining them.
3. The State of Orissa resisted the suit on the assertion that all reasonable opportunities were given to the plaintiff in defending himself in the proceeding before the tribunal and that the suit is barred by res judicata, in view of the decision of the Supreme Court upholding the order of dismissal passed by the defendant.
4. The learned Subordinate Judge accepted the plaintiff's case that no personal hearing was given by the defendant before the order of removal was passed and that reasonable opportunity was not afforded to the plaintiff inasmuch as the witnesses examined were not mentioned in the charge, but for the first time, they were examined by the tribunal. Despite the aforesaid finding in favour of the plaintiff, he dismissed the suit as being barred by res judicata.
5. Sri Murti advanced three contentions:
(1) The State Government did not give personal hearing to the plaintiff before the order of removal was passed and this, by itself, is a violation of Article 311(2) of the Constitution of India and that the order of removal should be set aside.
(2) The witnesses on whose evidence the plaintiff was found guilty were not mentioned in the charge. Plaintiff had no prior notice that those witnesses Would be examined and as such he was not in a position to effectively cross-examine them. The evidence of such witnesses and the finding that the plaintiff was guilty of bribery should be ignored as being based on no evidence.
(3) The suit is not barred by res judicata. Each of these contentions require careful examination.
6. The first contention appealed to the learned Subordinate Judge He, however, failed to notice that this averment of fact was not made in the plaint. It should be made clear that there is no complaint even now that no personal hearing was given by the tribunal. All that is said is that the State Government did not give any personal hearing before the order of removal was passed.
7. Sri Murti placed reliance on Mohammad Samsul Haque v. Member, Board of Revenue A.I.R. 1956 Orissa 103. It supports his contention. A Bench of this Court in construing Rule 55A of the Central Civil Services (Classification, Control and Appeal) Rules, 1930, observed thus:
In our opinion, this rule, fairly construed, means that if the petitioner, after filing a written representation, desired to be personally heard even after the second notice the dismissing authority should not have passed the final order without giving him the opportunity of making his representation personally before the authority.
8. The correctness of this decision was examined in Narayan Das v. Member, Board of Revenue A.I.R. 1956 Orissa 219 and a Bench of this Court held:
Therefore, the contention of the learned Advocate-General that this Rule 55A cannot be relied upon in support of the contention of the petitioner that he must fee given a personal hearing by the dismissing authority before the order of punishment is passed is correct. Consequently, the decision in Mohammad Shamsul Hague v. Member, Board of Revenue, Sambalpur and State of Orissa A.I.R. 1956 Orissa 103 (vide supra) was based upon a wrong rule placed before their lordships which did not apply to the facts of that case.
9. The matter is however, concluded by a Bench decision of this Court in Dr. Jnanendra Nath Das v. State of Orissa 1965--I L.L.J. 173. This Court reviewed all the authorities and placing reliance on a decision of the Supreme Court observed thus at p. 178:.There can be no dispute over the proposition that if the enquiring officer does not give a personal hearing to the delinquent officer, it may, in certain circumstances, amount to want of reasonable opportunity. 'Personal hearing' by the enquiry officer, in substance, amounts to hearing the arguments on the oral and documentary evidence recorded. Giving free scope to the delinquent for cross-examination of the witnesses for the State and for defending himself by examination of his own witnesses may not in some cases amount to proper vindication of the rights. The enquiring officer might change his own estimate of the evidence after hearing the arguments of the delinquent. 'Personal hearing,' therefore, may constitute an essential element of reasonable opportunity in the facts and circumstances of a particular case. In the writ application, the petitioner has made no grievance that the tribunal did not give a personal hearing to him. The Allahabad decision has, therefore, no application to the facts of this case. In fact, Sri Murti did not advance any contention before us that the tribunal did not hear the petitioner in person. He, however, contended that the State Government did not give the petitioner an opportunity for personal hearing. In Kapur Singh v. Union of India : 2SCR569 , their lordships held that an opportunity of making an oral representation was not a necessary postulate of an opportunity of showing cause within the meaning of Article 311. There is no substance in this contention.
10. The plaintiff's case directly comes within the mischief of this decision. The learned Subordinate Judge's view is untenable in law. He should not have allowed the plaintiff to advance such a case there being no such averment in the plaint, Sri Murti's contention has no substance and it is accordingly rejected.
11. The second contention is that the witnesses ultimately examined by the tribunal were not mentioned in the charge and that the plaintiff had no prior notice that those witnesses would be examined, and as such, he did not get adequate opportunity to effectively cross-examine them. Sri Murti conceded that the plaintiff did not make this ground as a grievance before the tribunal. If, in fact, the plaintiff was taken by surprise as he had no prior notice about the antecedents and character of those witnesses, he ought to have made an application before the tribunal making grievances therein and asking for adjournment to a subsequent date for collection of relevant materials against those witnesses for effective cross-examination. As no such grievance was made before the tribunal, it is difficult to uphold the Subordinate Judge's view that the plaintiff was not afforded reasonable opportunity for cross-examining those witnesses. Ordinarily, prior notice is given to the delinquent of the names of witnesses to be examined. Omission to give such a notice would not vitiate the proceeding as being illegal or without jurisdiction, Unless prejudice is caused and the delinquent is deprived of the reasonable opportunity of defending himself, the order cannot be set aside. The view of the learned Subordinate Judge is contrary to law and cannot be upheld.
12. The last contention is that the suit is not barred by res judicata. The matter is, however, concluded by a decision in Gulab Chand v. State of Gujarat : 2SCR547 . The majority, in Para. 61, observed thus:
We do not see any good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or 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 decisions after full contest. We, therefore, hold that, on the general principle of res judicata, the decision of the High Court on a writ petition under Article 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular snit between the same parties with respect to the same matter.
13. Even assuming that some of the grounds on which the impugned order could be effectively attacked were not taken in the earlier writ application, they cannot be reagitated in the subsequent suit on account of the principle of res judicata. The learned Subordinate Judge was correct on this count.
14. In the result, all the contentions fail and the first appeal is dismissed with costs.
B.K. Patra, J.
15. I agree.