1. This second appeal has been placed before the Division Bench in pursuance of an order passed by my learned brother D. K. Mahajan J., on 9-12-1963. It had initially come up for hearing before him on 13-5-1963 when the principal contention raised before him was that the same matter had earlier been agitated by the appellant in Civil Writ earlier been agitated by the appellant in Civil Writ No. 185 of 1956 directed against this very order of dismissal which is challenged in the present proceedings on the allegation that the appellant had not been afforded a reasonable opportunity and that the said petition was dismissed by Bishan Narain J., whose order was confirmed on Letters Patent appeal by Bhandari C. J. and Dulat J. After the decision of the letters Patent Bench the appellant instituted the present suit in which the same point is again agitated. The suit was dismissed by both the Courts below the lower appellant Court holding the earlier order of this Court in writ proceedings to operate as res judicata. Holding that the plea of res judicata had not been specifically pleaded. the learned Judge framed two additional issues and sent the case back to the trial Court for determination of those issues. The additional issues are in the following terms:
1. Whether the decision of the Letters Patent Bench in Civil Writ No. 185 of 1956 operates as res judicata in the present suit?
2. Whether the plea of res judicata has been waived by the state?
(2) In pursuance of this order the trial Judge Shri Muktar Singh Gill has reported that the dismissal of the writ petition file by the plaintiff does not operate as res judicata in the subsequent suit brought on the same ground and that the defendant had waived this pawls of res judicata. After the receipt of the report from the trial Court the appeal was again posted before my learned brother on 9-12-1963 and Shri L. D. K. Kaushal on behalf of the State challenged the report contending that the decision of Sharma J., in Smt. Bimla Chopra v. Punjab State 65 Pun LR 945 on the basis of which the trial Court has negative the plea of res judicata required reconsideration. This challenge was sought to be supported by a decision of the Bombay High Court in Manehem S. Yeshoova v. Union of India AIR 1960 Bom 196 and by Daryao v. State of U. P., AIR 1961 S C 1457. It is this challenge case 65 Pun LR 945 which has necessitated the present reference.
(3) Shri M. S. Punnu on behalf of the respondent challenging the report has to begin with drawn out attention to both the decisions mentioned above. The observations in Manahem's case AIR 1960 Bom 196 relied on by the respondent undoubtedly support his contention in broad and general terms. The matter has however been dealt with at length by the Supreme Court in Daryao's case AIR 1961 S C 1457. Our attention has been invited to paragraph 11 of the judgment in which Gajendragadkar J., (as he then was) speaking for the Court expressed himself thus:
'Therefore, if a judgment has been pronounced by the High Court in a writ petition filed by a party rejecting his prayer for the issue of an appropriate writ on the ground either that he had been no contravention of the right proved or that the contravention is justified by the Constitution itself, it must attacked by adopted the procedure prescribed by the Constitution itself. The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law and the rule of law obviously is the bases of the administration of justice on which the Constitution lays so much emphasis.
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The learned Judge after taking note of the law as contained in Halsbury's Laws of England and in Corpus Juries Secundum and also observing that an original petition for a writ under. Art. 32 presented to the Supreme Court could not take the place of an appeal against the order passed by the High Court under Art. 226 continued:--
'Thus, on general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as in admissible or irrelevant in dealing with petitions filed under Art. 32 of the Constitution. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a Court of competent jurisdiction there has been a contest between the parties has been referred to a Court of competent jurisdiction there has been a contest between the parties before the Court fair opportunity has been given to both of them to prove their case and at the end the Court has pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution.'
Our attention has in addition been drawn to Lalbihari Tiwari v. Sheo Shankar Prasasd AIR 1964 Pat 174 (FB) the had-note of which reads thus:--
'Where a party has filed a writ application in the High Court but has omitted to raise certain points including the vires of a certain Act its subsequent suit for a declaration about the vires of that Act is barred by constructive res judicata.'
The respondent has also cited Pritam Kaur v. State of Pepsu AIR 1963 Punj 9(FB) and reliance has been placed on the following observations at page 14:--
'Returning to the preliminary objections it is obvious that in view of the decision of Bishan Narain, J., Chopra, J. could not entertain and decide the same question. Therefore, Chopra, J. had no jurisdiction to pronounce on the vires of the Pepsu Act It seems that the decision of Bishan Narain, J., was not brought to the notice of Chopra, J. nor was it contended that the petition before Chopra J at least regarding matters settled by Bishan Narain J. on the 27 the of September 1957, was incompetent. Therefore, the decision of Chopra, J., on the matters settled by Bishan Narain J would be without jurisdiction. See in this connection the observation of their Lordships of the Privy Council in Joy Chand Lal v. Kamalaksha Chaudhury, AIR 1949 P. C. 239. Therefore the decision of Chopra J., which in the circumstances must be held to be without jurisdiction cannot operate as res judicata. It is not disputed that before a decision can operate as a res judicata it must be a decision by a Court having jurisdiction.
The respondent's counsel has also relied on Seth Ganga Sagar v. Seikh Inam Ilahi, 48 Pun LR 195: (AIR 1946 Lah 387) for the proposition that the plea of res judicata may be raised at the stage of appeal where no further facts are to be brought on the recorded to substantiate that plea. It has further been observed that the judgment pleaded as a bar had been delivered more than a fortnight after decision by the trial Judge with the result that the plea of res judicata could only be raised at the appellant stage. The next decision on which the respondent has relied is Pattrachariar v. Alamelumangai Ammal AIR 1927 AMD 273 wherein it is laid done that although generally a plea once abandoned may not be raised yet such fundamental issues a limitation and res judicata are an exception to it. Plea of res judicata was also allowed to be raised after the retrial on remand in Ram Sarup v. Kanhaiyalal AIR 1929 All 724. It has been forcefully urged that when a question of law is raised for the first time even in a Court of last resort upon facts either admitted or proved beyond controversy it is not only competent but expedient in the interest of justice to entertain the plea.
(4) For the appellant it has been emphasised that the plea of res judicata does not go to the jurisdiction of the Court.
(5) In my opinion the ration of the Supreme Court decision in Daryao's case AIR 1961 S. C. 1457 would be equally attracted where a decision by this Court in a writ petition under Art, 226 of the Constitution is pleaded as operating by way of res judicata in a subsequent suit provided other ingredients are satisfied.
(6) The appellants learned counsel has however urged that the pleas of res judicata was never raised by the State in the case in hand and since it is open to a party to waive such plea the respondent must be deemed to have waived it and therefore disentitled to raise it now on second appeal. In support of this contention reliance has been placed on large number of decisions. To begin with our attention has been drawn to Moturi Seshayya v. Venkatadri Appa Row Bahadur AIR 1917 Mad. 950 in which a Bench of that Court has observed that the plea of res judicata being one in a bar of a trial of a suit or an issue as the case may be and not affecting the jurisdiction of the Court may be waived by a party. In Rajeswara Sethu Pathi v. Ramanathaswami, AIR 1921 Mad 306 one of the learned Judges has observed that the rule of the res judicata is a rule of personal estoppel and does not attach itself to property. R. K. Mitra v. Ajamaddin Bhuniya AIR 1929 Cal 163 followed the decision in Moturi Seshayya's case.
R. K. Mitra's case AIR 1929 Cal 163 was later followed in Nagenbala Dasee v. Sridam Mahato AIR 1933 Cal 69 and in Khaje Habibulla v. Bipinchandra AIR 1936 Cal 454 another Bench of the Calcutta High Court observed that where in an appeal by the plaintiff from a suit which has been dismissed although it is open to the defendant to support the order of dismissal they do not do so and the suit is remanded to be heard on merit they are precluded from raising the plea of res judicata subsequently. Sansarchand Lachhman Das v, Dina Nath Dube AIR 1935 All 645, also lays down that the plea of res judicata is a plea in bar and can be waived. to the same effects is N. F. M. Pillai v. N. P. T. B. P. Thankachy, AIR 1952 Trav Co. 425 is Jagdish Chandra Deo v. Gour Hari Mahato AIR 1936 P. C. 258, the High Court has declined to allow an appellant to go into the question of res judicata on the ground that it had not been properly raised by the pleadings or in the issues particularly in the issues.
This view was upheld by the Privy Council with the observations that it was necessary for the appellant if he wanted to use the judgment in the earlier suit as res judicata to identify the subject-matter is dispute in both the earlier and the later controversy. In M. Surayya v. Tondapu Bala Gangadhara AIR 1948 PC 3 it was observed that the question of res judicata has to be specially pleaded and where this question had not been argued before the trial Court or the High Court it could not be entertained for the first time by the Privy Council. Stress has also been laid on the contention that we have neither the earlier writ petition nor the retain thereto before us with the result that we do not know what pleas had been raised in that case.
Reference has also been made to Hindustan Twyfords Lts. V. Daulat Ram 1964 Cur LJ 291: (AIR 1965 Punj 50) for the view that in order successfully to establish the plea of res judicata or estoppel by the record, it must be shown that in a prior case the Court having jurisdiction to try the question came to a decision necessarily and substantially involving the determination of a matter in issue in later case because the doctrine of res judicata is to be very valuable right in getting his controversy adjudicate upon by the Courts in accordance with law. It has in addition been contended that a decision in writ proceedings cannot operate by way of res judicata in later proceedings in a regular suit because the plaintiff is entitled to lead all relevant evidence on which the relied and also to cross-examine the evidence produced by the opponent which could not be done in proceedings under Art. 226 of the Constitution.
(7) After considering the arguments addressed to us we are inclined to take the view that there is no general legal bar to a plea of res judicata being raised but whether or not to allow a party to raise such an plea on appeal would depend on the facts and circumstances of each case. In the cause of justice the allow this plea to be raised at this stage and the respondent must be held to have waived it.
(8) Coming to the merits on behalf of the appellant it has been submitted that he had applied on the inspection of documents on 25-2-1954 as per Exhibit D-18. The Enquiry Officer asked for the relevance of those documents and this was explained on 26-2-1954 as per Exhibit D-20. The inspection was allowed as per Exhibit D-21. A list of about 25 defence witnesses was submitted n 27-2-1954 but out of them only witnesses at Serial Nos. 7 and 11 to 18 were allowed with the remark that the other witnesses had nothing to say relevant to the charge against the defaulter.. The appellant's learned counsel has emphasised that the witness at Serial No. 8 the Assistant V. Record-Keeper the witness at Serial No. 21 the English Receipt Clerk and the witness at Serial No. 31 has been asked to bring records which were relevant and were wrongly disallowed and that this refused has materially prejudiced the appellant's defence. The second point urged in support of the appeal is that the list of the witnesses to be produced against the appellant was not furnished to him.
The third grievance urged is that the appellant had been directed to remain in the police lines and he was not given any leave for preparing his defence. He had asked for seven days leave but the same was refused. Lastly it has been emphasised that he appellant was asked to appear before the Superintendent of Police on 27-3-1954 and he was asked that same day to show cause on the spot. Since no opportunity was being afforded to him he had no option but to state that he had nothing more to urge.
(9) On behalf of the respondent it has been submitted that the records which were sought to be summoned by the appellants had actually been inspected by him and indeed all the relevant files were before the Enquiry Officer and it is for this reason that the witnesses who had merely to produced the records were not allowed to be summoned. Reference has also been made on behalf of the respondent to Exhibit D-28 which is an interim order passed by the Superintendent of Police Hoshiarpur on 27-3-1954 where by the appellant Bua Dass was called upon if he had any further statement to make or evident to put in his defence. The appellant replied as per his statement of the same date (Exhibit D-29) that he wanted to summon the remaining the defence witnesses who had not been allowed to be produced and would make his submission after examining them. In case those witnesses were not to be allowed then he had nothing more to say. As per Exhibit D 30, the Superintendent of Police only allowed witnesses at Serial Nos. 15 and 17 if so desired by the appellant and refuse to summon the others.
The appellant thereupon made a statement that he did not desire to produce those two witnesses and that in that situation he had nothing more to say. This was followed by another order whereby the appellant was called upon in accordance with police rules to show cause as to why an order of dismissal should not be passed against him. In this order it is stated that a copy of the findings of the Enquiry Officer had been supplied to him earlier on the same day. In reply the appellant stated that he had nothing more to urge. All this it may be pointed out happened on the same time. According to the respondent the petitioner had been given ample opportunity to show cause against the proposed penalty and that same day and that the other witnesses sought to be produced by him were not allowed on the ground that they were not in a position to say anything relevant does not militate against the reasonableness of the opportunity afforded to him.
In so far as the grievance regarding refusal to give him leave for preparing his defence is concerned it has been pointed out hat the charges were handed over to the appellant on 25-2-1954 and he was thereafter given seven days time the maximum permissible under the rules for filing his written statement. He availed of this time and filed his reply on 5-3-1954. All reasonable facilities for producing his defence witnesses were then allowed to him and he was also asked to file his supplementary statement on 13-3-1954. Instead of filing his supplementary written statement the appellant applied on 13-3-1954 for seven day's leave. The rules however did not permit him further reasonable time and indeed he was given another seven day's time to enable him to put in further reply. Since leave was not provided by the rules none was give, In support of this submission reference has been made to Exhibit D. 9 and Exhibit D-10. Our attention has also been invited to a note at the bottom of Exhibit D. 10 in the appellant's hand writing statement within seven days by the Superintendent of Police dated 13-3-1954.
As a matter of fact, we have been taken by the respondent through most of the record for the purpose of showing that the appellant had been given every reasonable opportunity for showing cause against the proposed punishment as also for defending himself before the Enquiry Officer. The report of the Enquiry Officer dated 25-3-1954 Exhibit D. 16 covering about 14 pages and expressing his opinion that the charge was fully proved and the allegation regarding escape of Kishan from the appellant (defaulter) was serious and the final order of dismissal by the Superintendent of Police dated 14-4-1954 Exhibit D. 34 have also been purpose of showing that the matter has been dealt with by the departmental officers conscientiously and thoroughly and that there has been no failure of justice in the course of these proceedings. The appellant it may be pointed out has laid particular stress on the original police file No. 218/53, 221/53, 228/53(336) P. S. City Hoshiarpur which he wanted to produce through the Assistant v. Record-keeper at Serial No. 8 of Exhibit D. 6 for the purpose of proving the case diaries in connection with the said enquiry and the challan zimnis.
It may be recalled that this witness had not been allowed to be summoned. The respondent's learned counsel has pointed out that according to the evident of Dracaena Singh P. S. I., P. W. 4 in the enquiry proceedings all these files were referred to by him in the course of his evidence. This witness was cross-examined at great length and no prayer was made and that file was required for the purpose of examining this witness. Indeed the submission is that the file was actually present before the Enquiry Officer for any reference which the appellant wanted to make. It is conceded by the respondent that F. I. R. No. 210 was material to the case though in regard to others it has been very strongly contended that they were not at all relevant F. I. R. No. 210 has however been shown to be actually exhibited in this case as Exhibit P. C. having been produced by P. W. 3. H. C. Amar Singh Record-keeper V. Office Hoshirpur Singh P. W. 6 was also questioned in regard to this F. I. R.
In so far so the grievance relating to the list of prosecution witnesses is concerned the respondent's learned counsel has pointed out that this point was not urged in the Court below and besides full details had actually been supplied to the appellant before-hand. It has also been argued that the appellant had been proved full facilities for the purpose of defence and it is wholly wrong to urge that he was virtually a detain in police-lines as has been sought to be contended.
(10) An attempt has also been made by the appellant to suggest bias on the part of the Superintendent of Police by contenting that the finger print bureau at Phillaur was approached at the back of the appellant for certain information but according to the respondent this is wholly irrelevant for had the report been sought to be utilized against it. Seeking some information from the respondent does not show bias. We are inclined to agree with the respondents submission.
(11) After considering the arguments in my opinion the only legitimate grievance which the appellant can have is that after the Enquiry Officer had submitted his report to the Superintendent of Police the appellant was not given an adequate and reasonable opportunity of showing cause against the proposed punishment. To call upon the appellant on 27-3-2954 to put forth his defence and show cause forth with without giving his reasonable item to consider the report and if necessary to consult his friends and advisers can on the facts and circumstances of this case by no means be held to be reasonable opportunity and it must in my opinion be held to be violative of the rules of natural justice. In regard to the other grievances I do not think they vitiate the final order because he never made any serious grievance of the irregularities--if irregularities they be-before the Enquiry Officer at the proper time. He was however entitled to reasonable opportunity to show cause against the proposed punishment even by adducing whatever relevant evidence he wanted to adduce.
It may appropriately be stated that statuary opportunity accordingly to law applicable to this case has to be reasonable afforded at both stages and the punishing authority has to apply its independent judicial authority has to apply its independent judicial mind in considering whether the opportunity claimed on the facts and circumstances of the particular case is reasonable. The courts below have apparently ignored this vital consideration an do not seem to have applied the correct principle of law to the question of reasonableness of the opportunity which has to be afforded to a delinquent public servant for the purpose of showing cause against the proposed punishment. It is clear that the second opportunity in the case in hand was not reasonable and this vitiates the final order of dismissal.
(12) In the result this appeal succeeds and allowing the same we quash and set aside the order of dismissal but it would be open to the Superintendent of Police or the punishing authority to afford reasonable opportunity to the appellant to show cause against the proposed punishment by affording him full facilities for producing relevant evidence on the record which on judicious considerations is considered necessary. There would be no order as to costs of this appeal.
(13) Appeal allowed.