S.K. Kapur, J.
(1) Termed as harsh and yet firmly established rule, namely, the rule of rest judicata has been invoked in this case by the Union of India, respondent by way of defense to the appellant's suit for a declaration that the orders of the appellant's reduction in rank and subsequent dismissal on September 16, 1954, from Government service are illegal and for recovery of Rs.52,075.00 on account of pay and allowances by way of consequential relief.
(2) It was in March 1941 that the appellant joined as a Lower Division Clerk in the Commerce Department of the Government of India. He made a marked progress and on June 27, 1948, was promtoed as Administrative Officer, Gazetted, in the office of Chief Controller of Exports which post was, on September 1, 1949, re-designated as that of Assistant Controller. In 1950 the posts of Chief Controller of Exports and Chief Controller of Imports were merged but the appellant continued to hold the charge as Assistant Controller of Exports. On March 26, 1953, the appellant gto a letter informing him that he had been suspended and two days later a charge-sheet was served on him. Two charges were leveled against the appellant-
(I)You aided and abetted Shri Bhan, a representative of Messrs Gattoo Lall Chhagan Lall Joshi in offering illegal gratification to Shri Tawakley; and
(II)you attempted to induce Shri Tawakley, a public servant, to accept the illegal gratification offered by Shri Bhan.
The charges were accompanied by allegations on which they were founded.
(3) On August 7, 1953, the appellant is alleged to have been reverted as Third Division Clerk. The inquiry report came in May 1954 and, as I have said earlier, the appellant was dismissed on September 16, 1954. He challenged the order of his dismissal in the Punjab High Court by a writ petition (Civil Writ No. 248-D of 1954) and urged the following seven grounds:-
(A)That the petitioner was nto allowed access to the records before he could submit his Explanationn to the charges.
(B)That no opportunity was given to the petitioner to cross-examine the witnesses produced by the Union of India against him.
(C)That the petitioner was cross-examined and was nto enabled to make an oral statement on his own behalf.
(D)That the defense witnesses were nto given an opportunity to tell their own version or to be examined by the petitioner as their depositions were confined to answers in reply to questions put by the inquiry officer.
(E)That when called upon to show cause against the proposed orders of dismissal, the petitioner was nto furnished with a complete copy of the report of the inquiry officer and was supplied extracts only.
(F)That the petitioner has been wrongfully deprived of his right of appeal.
(G)That serious procedural irregularities were committed and the well-established governmental rules were contravened to the detriment of the petitioner.
(4) The Punjab High Court byjudgment dated January 31, 1966, allowed the petition on the ground that no fair opportunity had been given to the appellant to present his case before the inquiry officer. It was held-
'THEimpression left by the record of the evidence as a whole is that consciously or unconsciously the inquiring officer allowed himself to slip into the role of prosecuting counsel and that, whether there is any merit in the defense of the petitioner or nto, he was nto allowed to present his case fairly, or even according to the rules governing the conduct of the inquiry.'
The Union of India appealed before the Supreme Court and the appeal was allowed on September 18, 1957, Union of India v.T. R. Verma.
(5) Dealing with the contention of the appellant as to denial of natural justice in preventing him from cross-examining his witnesses produced in support of the charge, their Lordships of the upreme Court said that facts were disputed and the matter could nto be satisfactorily decided without conducting evidence 'but we feel pressed by the fact that the order dismissing the respondent having been made on September 16, 1954, an action to set it aside would nto be time barred. As the High Court has gone into the matter on merit we propose to dispose of this appeal on a consideration of the merits'. The Supreme Court went into the pleadings in the writ petition and recorded a finding thus-
'WEhave examined that record in the light on the above principles and find that there has been no violation of the principles of natural justice. The witnesses have been examined at great length and have spoken to all relevant facts bearing on the question and it is nto suggested that there is any toher matter on which they could have spoken. We do nto accept the version of the respondent that he was nto allowed to put any questions to the witnesses'
'WEaccordingly hold differing from the learned Judges of the Courts below that the inquiry before Mr. Byrne was nto defective, that the respondent had full opportunity of placing his evidence before him, and that he did avail himself of the same.'
(6) With these observations their Lordships of the Supreme Court allowed the appeal and it is this judgment of the Supreme Court which has been set up by the Union of India as barring the prevent suit on the principles of rest judicata.
(7) The appellant filed this suit in September 1959 and claimed the two reliefs mentioned already hereinbefore. Originally issuse were framed on November 11, 1960 but the following two additional issues were framed on 6-9-1961 and February 1, 1962, respectively by the trial Court, being issues A and 7-A :-
A.Whether the present suit is barred on the principies of rest judicata in view of the judgment dated 18-9-1957 (wrongly typed as 18-9-1959) of the Supreme Court?
7-A.Whether the judgment dated 18-9-1957 by the Supreme Court was obtained by concealment of material facts as alleged? If so, what is its effect
The trial Court recorded a finding on issue A in favor of the plaintiff-appellant and issue 7-A against him.
(8) The appellant's suit was, however, dismissed by the trial Court on August 21, 1962. The appellant has appealed against the said decree and judgment of the trial Court. Mr. S. N. Chopra, the learned counsel for the appellant, did nto dispute that in view of the decision of their Lordships of the Supreme Court in Gulabchand Chhtoalal Parikh v. State of Gujarat a judgment rendered on a writ petition if fairly and properly obtained would operate as rest judicata. He, however, made a valiant and determined effort to find a gateway and sought to take aid for the purpose from section 44 of the Indian Evidence Act. I will deal with this contention after briefly referring to Gulabchand''s case. The Supreme Court held in that case-
'WEdo nto 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 rest 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 context.'
The majority of their Lordships, however, left open the question whether the principles of constructive rest judicata could 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 proceedings was nto so raised therein.
(9) That takes me to Mr. Chopra's contention that the earlier judgment of the Supreme Court dismissing the appellant's writ petition having been obtained by fraud practiced on the Court cannto operate as rest judicata in the face of section 44 of the Indian Evidence Act. In support of the plea Mr. Chopra said that before the inqury started against the appellant's statements of Messrs. S. P. Mehan, C. B. Tawakley, and Madan Mohan had been recorded by certain Government officers. The appellant wrtoe to the Inquiry Officer letter Exhibit P/30, dated April 4, 1953, asking for access to the various records including any statement, report or complaint made against the appellant by Shri Tawakley or any toher person to the Ministry either before or after 17th March, 1953 or in connection with the meeting dated 21st March, 1953 or to the Special Police Establishment or any toher agency. This letter was replied to by the Inquiry Officer on the same day. The Inquiry Officer wrtoe-
'WITHreference to your letter of today asking that any statements made by Shri Tawakley and tohers be made available to you for perusal, I am to say that Shri Tawakley and tohers will depose before me during the course of the enquiry and you will be supplied with copies of the depositions and also given the right to cross-examine the witnesses. In the circumstances, it is regretted that any statements which may already have been made by Shri Tawakley and tohers cannto be made available for your perusal.'
(10) In paragraph 4 of the writ petition the appallant made a grievance against nto being allowed access to the said earlier statements. The Union of India, respondent in the writ petition, replied paragraph 4 thus-
'PARA4 of the petition as stated is nto admitted. There was no record in this case which could be shown to the petitioner excepting the statements, recorded by Special Police Establishment, and those being confidential documents were nto disclosed to the petitioner.'
(11) Mr. Byrne also filed an affidavit in opposition to the writ petition and inter alias stated therein that-
'OPPORTUNITYwas given to the plaintiff at the time of oral enquiry to cross-examine the witness who deposed against him and all witnesses were examined in petitioner's presence and he was asked by me at the end of each examination whether he had any question to put'.
It further appears from the proceedings before the inquiry Officer held on 23rd April, 1953, that Shri P. Govindan Nair, Deputy Secretary, Ministry of Commerce, disclosed before the Inquiry Officer, in presence of the appellant, that statements of the said three persons had been recorded earlier. The fact of the statements having been recorded before the commencement of the enquiry was, thereforee, known to the appellant. Mr. Chopra contended that in the written-statement supported by an affidavit and in the counter-affidavit of Byrne it had clearly been stated that the statements of all the witnesses were recorded in presence of the appellant and from that the appellant genuinely believed, as any one would, that no statement had been recorded before the commencement of the enquiry and behind the appellant's back. Mr. Chopra said that the appellant proceeded with the case before the High Court and the Supreme Court in that belief founded on the statements in the written-statement and counter-affidavit and, thereforee, did nto and could nto place the fact before the Courts that some earlier statements had been recorded and withheld thereby violating the rule of audi alteram partem. According to Mr. Chopra this was a fraud practiced by the Union of India on the Court vitiating the earlier judgment of their Lordships of the Supreme Court and thereby providing him a gateway out of the rule of estoppel and resjudicata.
(12) Apart from the legal aspect, even the premise of Mr. Chopra is without foundation. The fact that statements had been recorded earlier had clearly come to surface during the enquiry proceedings and it cannto, thereforee, be suggested that this material and/or information was withheld or could nto be placed before the Court during earlier proceedings terminating in the judgment of the Supreme Court. That by itself will rule out the argument of fraud. Moreover, the letter of Byrne, Exhibit P/31, dated the 4th April, 1953 and the written-statement filed to the writ petition do nto support Mr. Chopra. In the letter Mr. Byrne had said that 'any statements which may have already been made by Shri Tawakley and tohers cannto be made available for your perusal'. In the written-statement again it is said that 'there was no record in this case which could be shown to the petitioner excepting the statements recorded by Special Police Estabhshment and those being confidential documents were nto disclosed to the petitioner.' In none of these two documents is there any clear assertion that no statements had been recorded earlier a fact which undisputedly came to light at least during the enquiry proceedings. Again Mr. Byrne's counter-affidavit in reply to the writ petition does nto deal with all the allegations in the writ petition. On the toher hand it expressly relies on the counter-affidavit sworn by Shri Shiv Dev Singh in support of the written-statement and re-affirms the correctness of the statement made therein. Mr. Byrne only confined his affidavit to the matters directly concerning him and was limited to inquiry proceedings. That would again be destructive of the argument of willful suppression or fraud as one must read Mr. Byrne's affidavit in the light of the averments contained in the writtenstatement and its accompanying affidavit which I have discussed already. True that the principles laid down in section 11 of the Civil Procedure Code is considerably modified by section 44 of the Indian Evidence Act, inasmuch as a judgment obtained by fraud cannto operate as rest judicata. But the modification has its limits. Fraud must be established by the party setting it up by a cogent evidence and mere want of good faith will nto estabhshfraud. The section is based on a well recognised concept that fraud vitiates the most solemn proceedings in courts of law. The fraud contemplated by section 44 is an extrinsic act unconnected with matters adjudicated upon such as fraud in preventing a litigant from appearing and placing his case before the Court. Constructive fraud is nto enough. Fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and/or the Court in ingorance of the real facts relevant to the enquiry and obtaining judgment by such contrivance. This is ajurisdiction which calls for exercise with great care and reserve, for toherwise litigation will never end and the parties may go on ad infinitum. Law reports abound with decisions where one finds judgment rendered on evidence irreconcilably conflicting. The courts have to draw a fair medium between tendency to obtain judgments by practicing fraud upon the Court and the evils which may arise from opening unending avenues of litigation by permitting nullification of the judgments on the ground that they were obtained by fraud. A Full Bench of the Madras High Court in Kadirvelu Nainar v. Kuppuswami Naiker approved the following observations of Sundara Ayyar, J. in Chimayya v. Ramana-
'THEtest to be applied is, is the fraud complained of nto something that was included in what has already been adjudged by the Court, but extraneous to it If, for instance, a party be prevented by his opponent from conducting his case properly by tricks or misrepresentation, that would amount to fraud. There may also be fraud upon the Court if, in a proceeding in which a party is entitled to get an order without ntoice to the toher side, he procures it by suppressing facts which the law makes it his duty to disclose to the Court. But where two parties fight at arms length, it is the duty of each to question the allegations made by the toher and to adduce all available evidence regarding the truth or falsehood of it. Neither of them can neglect his duty and afterwards claim to show that the allegation of his opponent was false.'
(13) If this test, which, if I may say with respect, lays down the law correctly, is applied, the appellant stands clearly precluded from setting up fraud because even when everything else is ignored his
'THEprinciple upon which these decisions rest is that where a decree has been obtained by a fraud practiced upon the toher side by which he was prevented from placing his case before the Tribunal which was called upon to adjudicate upon it in the way most to his advantage, the decree is nto binding upon him, and that the decree may be set aside by a Court of justice in a separate suit and nto only by an application made in the suit in which the decree was passed to the Court by which it was passed, but I am nto aware that it has ever been suggested in any decided case; and in my opinion it is nto the law that because a person against whom a decree has been passed alleges that it is wrong and that it was obtained by purjury committed by or at the instance of the toher party, which is of course fraud of the worst kind, that he can obtain a re-hearing of questions in dispute in a fresh action by merely changing the form in which he places it before the Court, and alleging in his plaint that the first decree was obtained by the perjury of the person in whose favor it was given. To so hold would be to allow defeated litigants to avoid the operation, nto only of the law which regulates appeals, but that of that which relates to rest judicata as well.'
(14) I may make it clear that fraud in this section is nto limited to its definition in section 17 of the Contract Act. In the result my conclusion is that neither were the Union of India guilty of suppression of facts constituting fraud within section 44 of the Indian Evidence Act nor is it open to the appellant to seek aid from the said provision and set up suppression of a fact as vitiating the judgment which fact was known to the appellant. The suit is, thereforee, barred on the principles of rest judicata. The dismissal of the appellant must consequently be held to be valid denying necessarily the relief as to pay any allowances.
(15) Mr. Chopra fairly conceded that if his dismissal is held to be valid the question of allowances during the suspension period of the appellant would nto arise. I, am, thereforee, relieved from pronouncing on toher points in the appeal.
(16) The appeal is, thereforee, dismissed, 'but in the circumstances I leave the paries to bear their own costs.
Hardayal Hardy, J.
(17) I agree.