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K.P. Padmanabhan Nair Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 1311 of 1964
Judge
Reported inAIR1966Ker110
ActsConstitution of India - Articles 32 and 226; Code of Civil Procedure (CPC) , 1908 - Sections 11; Travancore Cochin Rules; Kerala Government Servants Conduct Rules, 1960 - Rules 64 and 68; ;Gravancore Cochin Government Servants Conduct Rules, 1950 - Rules 70 and 72
AppellantK.P. Padmanabhan Nair
RespondentState of Kerala
Appellant Advocate P. Subramaniam Potti and; S.A. Nagendran, Advs.
Respondent AdvocateGovernment Pleader
DispositionPetition allowed
Cases ReferredGulabchand v. State of Gujarat.
Excerpt:
service - disciplinary proceeding - articles 32 and 226 of constitution of india, section 11 of code of civil procedure, 1908, travancore cochin rules, rules 64 and 68 of kerala government servants conduct rules, 1960 and rules 70 and 72 of travancore cochin government servants conduct rules, 1950 - petitioner once punished by way of disciplinary action dismissing him from service - petitioner challenged fresh disciplinary proceedings initiated for same offence - proceeding under article 22 will operate as res judicata in subsequent proceedings taken by same party under article 226 - principles of constructive res judicata applies with equal force to writ petition under article 226 - parties should not be made to face same kind of litigation twice - proceedings contemplated by state on.....orderc.a. vaidialingam, j.1. in this writ petition the peti-tioner seeks to have the order passed by the state government, ex. p-3 on 5th of february 1904 placing the petitioner under suspension pending fresh disciplinary proceedings contemplated in be taken against him. quashed. ex. p-4 dated, 28th of february 1964 is only a consequential order passed by the district registrar, kozhikode, passed on the basis of the government order ex. p-3. therefore, the validity of ex. p-4. depends upon the view to be expressed by this court regarding the validity of ex. p-3 order and so kx. p-4 need not be considered separately.2. the main allack that is levelled against the proceedings sought to be initialed as contemplated in ex. p-3 is that for the same offence for which fresh action is.....
Judgment:
ORDER

C.A. Vaidialingam, J.

1. In this writ petition the peti-tioner seeks to have the order passed by the State Government, Ex. P-3 on 5th of February 1904 placing the petitioner under suspension pending fresh disciplinary proceedings contemplated in be taken against him. quashed. Ex. P-4 dated, 28th of February 1964 is only a consequential order passed by the District Registrar, Kozhikode, passed on the basis of the Government Order Ex. P-3. Therefore, the validity of Ex. P-4. depends upon the view to be expressed by this court regarding the validity of Ex. P-3 order and so Kx. P-4 need not be considered separately.

2. The main allack that is levelled against the proceedings sought to be initialed as contemplated in Ex. P-3 is that for the same offence for which fresh action is contemplated under Ex. P-3 the petitioner was once punished by way of disciplinary action dismissing him from service, as will be seen from the order Ex. P-1. That order us well as the initiation of the disciplinary proceedings which led to it were challenged by the petitioner in this court in O. P. No; 1493 of 1962 (Ker) under Article 226 of the Constitution; and on the merits this court quashed the entire proceedings by its judgment, Ex. P-2 daled 29th August. 1963, According to learned counsel for the petitioner the decision rendered by this court in O. P. Xo. 1493 of 1962 operates as res judicata in these proceedings.

3. No doubt the learned Government Pleader controverts the stand taken by the petitioner.

4. Inasmuch as the plea that is raised is one of res judicata it is necessary to refer to the proceedings connected with O. P. No 1193 of 1962 (Ker). The petitioner was working in January 1960 as a clerk in the sub-Registrar's office at Payyoli in the Malabar area which is now it part of the State of Kerala on the States reorganisation, for 1st of November 1956 Ex. P-1 which was the order passed by theState Government on 28th June 1961 dismissingthe petitioner from service will indicate thenature of the charges framed against the petitioner by the tribunal for disciplinary proceedings and the offence of which be was ultimatelyfound guilty.

5. From Ex. P-1 it will be seen that the charges against the petitioner were that while working as a clerk in the Sub Registrar's office at Payyoli, he had actively participated in the mid-term elections that look place in the State on 1st February 1960 by canvassing votes for an independent candidate referred to therein. The further allegation is that the peti-tioner did those acts on 2nd and 9th January 1960. The charge is to the effect that by that conduct the petitioner has violated Rule 67 of the Kerala Government Servants' Conduct Rules, 1900, hereinafter to be referred to as the Kerala Rules. It may be staled here that these rules were passed by the State Government only on 12th January 1960. The enquiry Officer found the petitioner guilty of the offences for which he was tried and after going through the other formalities the State Government, accepting the findings of the tribunal and rejecting the explanation furnished by the petitioner to the show cause notice issued to him, ultimately dismissed the petitioner from service, by its order dafed 28th June 1961 (Ex. P-1). It was this order that was challenged by the petitioner in the said writ petition. O. P. No. 1493 of 1962.

6. It may also be stated that by about this lime action had been taken by the State Gov-ernment against another officer for participation in political activities and the allegation against bint was that he so participated on 3rd January 1960 and 9th January 1960 and a.s such he violated the provisions contained in Rules 67 and 69 of the Kerala Rules. The said Officer filed O. P. No 1717 of 1961 : (AlR 1964 Kerala 227) in this court challenging the initiation of disciplinary proceedings against him as well as the order of dismissal passed by the State Government and the contentions of the petitioner in that case were to the effect that, inasmuch as even according to the State Government the petitioner had canvassed voles for a political party in the elections on 3rd January 1960 and 9th January 1900, long prior to the coming iulo force of the Kerala Rules on 12th January 1900. the findings recorded by the tribunal, which has been accepted by the State Government on the basis of which he was dismissed from service, is illegal, void and with-out jurisdiction.

7. This contention of the said petitioner was resisled by the State on two grounds :(1) that the Kerala Rules were applicable to the case and the action laken by the Government under those rules were perfectly justified inasmuch as the State Government passed orders referring the enquiry to the tribunal only on 17th May 1960 by which lime the Kerala Rules had come into force; and, therefore, according to the State the action laken on the basis of those rules and the enquiry conducted and the findings recorded by the tribunal are legal and valid. Alternatively, the State also took up the plea that the petitioner in that case, must certainly be found guilty of offences under Rules 70 and 72 of the Tra-vancore-Cochin Government Servants' Conduct Rules, 1950 (hereinafter to be referred to as the T. C. Rules) Those rules were issued on 22nd February 1950, and the particular rules referred to above corresponded to Rules 67 and 69 of the Kerala Rules.

8. This plea of the State was met by the petitioner in that case with the contention that inasmuch as the T. C. Rules have been stated to be framed, after the coming into force of the Constitution and inasmuch as they have been issued only on 22nd February 1950 the legality of those rules will have to be tested in accordance with the provisions contained in Article 309 of the Constitution. That is, according to the petitioner in that case, the said rules had not been passed by the State legislature not have the said rules been promulgated by the Raj Pramukh or any authority authorised by the Raj Pramukh as was required under the proviso to Article 309 as in force a! the material time.

9. When the said writ petition O. P. No 1717 of 1961, came up before this court, I gave opportunity to the State to furnish information regarding the source of power on the basis of which the T C. Rules had been framed: and after taking time for ascertaining the said information the learned Government Plcader appearing for the State at the time of the final hearing quite fairly accepted the position that it was not possible to sustain the legality and validity of the T. C. Rules, as having been framed in accordance with the provisions of Arlicle 300 of the Constitution. The State thus accepted the position that the T C. Rules could not be considered to be law, and there fore, the question that this court had to consider was two-fold, namely whether the action taken against the petitioner in O. P. No 1717 of 1961 : (AIR 1904 Kerala 227) under the Kerala Rules was legal and valid, and alternatively as to whether the claim of the State to sustain the disciplinary proceedings as well as the punishment against the petitioner under the provisions of the T C Rules could be accepted

10. By my judgment dated 18th March 1963 I rejected both the contentions taken on behalf of the State That decision of mine is reported in 1963 (1) K.L.R 155 (AIR 1964 Kerala 227) I had expressed the view that the Kerala Rules could not he invoked by the State inasmuch as they had admittedly been framed only on 12th January 1960 and they did not have am retrospective operation so as to make any person liable for anything that be did on 3rd and 9th January 1960. I have also held that the I C Rules, not having been framed, in accordance with the provisions of Arlicle 309 of the Constitution and admittedly having been issued only on 22nd February 1950 after the coming into force of the Constitution, cannot be considered to be law. So on both these grounds, the claim of the State was rejected, and I held that on the dates when the petitioner was alleged to have taken part in political elections there was no valid rule prohibiting him from doing so and on the basis of which action be taken against the petitioner. The writ petition filed by the petitioner in O. P. No. 1717 of 1961 : (AIR 1964 Kerala 227). was ultimately accepted by this court and the disciplinary proceedings initiated against him as well as the order of dismissal passed by the State Government were set aside.

11. The State Government have accepted the decision in O. P. No. 1717 of 1961 : (AIR 1964 Kerala 227), and it has become final. It was after the disposal of 0. P. No. 1717 of 1961 on 18th March 1963 (Ker) that the present petitioner's previous original petition, O. P. No. 1493 of 1962 (Ker) came up for hearing on 29th August, 1963 and that was disposed of by me by my judgment Ex. P-2.

12. In that writ petition the petitioner had stated that he was recruited to civil service in the State of Madras on 10th July 1948 as a lower division clerk and he has been allotted to the Kerala State on States reorganisation with effect from 1st November 1956 and that ever since he has been working under the Kerala State as an upper division clerk in the Sub Registrar's Office. The petitioner then referred to the fact that action was taken against him under Rules 67 and 69 of the Kerala Rules and that the State Government passed orders dismissing him from service. The contention that was taken in the petition was that inasmuch as the Kerala Rules had come into forte only on 12th January 1960, the action taken against the petitioner for acts committed prior to the coming into force of these rules was not legal and valid. The petitioner therefore prayed for quashing the disciplinary proceedings initiated against him as well as the final order of dismissal passed by the State Government which is Ex. P-1 in these proceedings.

13. The State Government did not file any counter affidavit as such in the said writ petition but it will be seen from my judgment (Ex P-2) dated 29th August 1963 that the State was prepared to proceed on the basis that this officer was also governed only by the T C Rules; and therefore inasmuch as the charges against the petitions in O. P No. 1717 of 1961 (Ker) and the present petitioner are almost identical the decision rendered by me and reported in 1963 (1) KLR 455 (AIR 1964 Kerala 227), applies to this case also It will be seen again from my judgment that I did not think il necessary to go into the various other points that were raised by the petitioner regarding the proceedings taken by the disciplinary authority as well as the nature of the enquiry conducted and the findings recorded by the tribunal.

14. Inasmuch as the State was prepared to take up the position that action could not be taken under the Kerala Rules of 1960 in view of my earlier decision and as I had also expressed the opinion that the T. C. Rules are not valid law, 1 ultimately found that at the material time, when this petitioner was alleged to have committed the offence, namely, 2nd and 9th January 1960 the only rules that were in force were not the Kerala Rules but the T. C. Rules of 1950. Ultimately the order of dismissal passed by the State Government. Ex. P-1. was set aside.

15. It is now seen that consequent on the decision rendered by this court the State Government passed the order Ex. P-3 to the effect that the petitioner should he reinstated in service in the first instance. It is also seen that under Ex. P-3 the State Government expressed the view that as the petitioner had taken part in political activities it is proposed to proceed against him. It is further stated that in view of the seriousness of the allegation the Govern ment considers that pending completion of fresh proceedings the petitioner should be placed under suspension. Accordingly the petitioner was placed under suspension simultaneous with his reinstatement.

16. In compliance with the directions given In Ex. P-3 the consequential order Ex. P-4 dated 28th February 1964 was passed by the District Registrar reinstating the petitioner and simultaneously placing him under suspension and Riving other directions regarding subsistence allowance and other allowance to which the petitioner was entitled to under the rules.

17. On going through the order Ex. P-3, it can he seen that excepting the statement that the State Government proposes to initiate proceedings against the petitioner for the same offence for which he was once tried and which proceedings were later on set aside by this court there is no indication at all in if as to under what provision of law the State Government proposes to take fresh action against the petitioner That has, however, been clarified by the State in the counter affidavit filed in this petition In paragraph 4 of the coiinter-affi davit the State has referred to the decision rendered by this court in O. P. No. 1493 of 1962 (Ker) and has adverted to the findings recorded by me to the effect that action could not be taken under the Kerala Rules and that the T C Rules were not valid under Article 309 And therefore, the State slates that in consequence of this judgment, they are reinstating the petitioner as per Ex. P-3 and also suspending him.

18. Under what provision of law the State Government proposes to conduct an enquiry against the petitioner is indicated in paragraph 5 of the counter affidavit. In that paragraph it is stated that the orders of the Government dismissing the petilioner wen- not quashed by this court on the former occasion on merits but on the ground that at the material lime when the petitioner is alleged to have committed the acts the rules which were in force were not the Kerala Rules but the T. C. Rules and that those rules cannot he considered to be law. The State Government proceed to state that they have re-examined the case of the petitioner in the light of the observalions in the judgment of this court in 0. P. No 1493 of 1962 (Ker) and have noticed that the petitioner who is an officer allotted from Madras is governed by the Madras Government Servants' Conduct Rules, 1949 (hereinafter to he referred to as the Madras Rules) at the material time. The State further avers that the Madras Rules were validly promulgated and therefore, they have decided to take action against the petitioner under those rules and that it is in this view that pending enquiry they have decided to place the petitioner under sus-pension. Though no indication is available regarding the particular provision of the statute under which the petitioner is again sought to be proceeded against in Ex. P 3 that has been clarified in the counter affidavit filed by the State; and it is clear that according to them, notwithstanding the fact that this court had held in O. P No. 1493 of 1962 (Ker) that no action can be taken under the Kerala on T. C. Rules, action can he taken under the Madras Rules which are valid and on the basis of which it is open to them to take further aclion agains! the petitionor.

19. It will be seen that in the previous original petition thed by the petitioner. O. P. No 1493 of 1962 (Ker), he has categorically stated that he was a civil servant in the Madras service, from 10th July 1948 working as a lower division clerk and that he has been allotted to the State of Kerala on 1st November 1956 consequent on the States reorganisation Notwithstanding this averments of the petitioner it will be seen that the State did not think it necessary to take up the position that even apart from the Kerala Rules or the T C Rules it will be open to the State to sustain the disciplinary proceedings under the provisions of the Madras Rules.

20. Mr Subramanian Potti, learned counsel for the petitioner, raised two contentions namely. (1) that the order of the State Government Ex P-1 was quashed on a former occasion by this court on merits, that neither the Kerala Rules nor the T. C. Rules will avail the State Government and that therefore an ad indication was made in favour of the petitioner and (2) that when the previous original petition was being disposed of by this court the State did not raise any plea as they now seek to raise, that the petitioner is governed by the Madras Rules, which they might and ought to have raised then in order to sustain the aclion taken as against the petitioner which was being challenged in that proceedings but that they restricted their claim only to sustaining the action under the T C Rules, and that therefore. it is no longer open to the State to base their action in respect of the same officer and for the same offence under the Madras Rules That is, in effect the previous decision rendered by this court in O. P. No 1493 of 1962 (Ker) operates. according to learned to counsel for the petitioner as res judicala

21. The learned Government Pleader controverted the stand taken by learned counsel for the petitioner. His first contention is that a perusal of the judgment or this court (Ex. P-2) will clearly show that there has been no disposal of the original pctilion No. 1493 of 19(52 (Ker) on merits. His further contention is that the question of the applicability of the Madras Rules or sustaining the disciplinary action by the State on the basis of the Madras Rules was never raised nor considered by this court. The learned Government Pleader submitted that the question of the applicability of the T. C. Rules alone were considered in the decision of this court reported in 1963 (1) K. L. R. 455 : (AIR 1964 Kerala 227) and the applicability or otherwise of the Madras Rules was not under consideration in that case and, therefore, the plea of res judicata should not be accepted by this court. In this connection the Government Pleader referred me to paragraph 2 of the judgment (En. P-2) wherein I had slated that notwithstanding the stand taken by the writ petitioner regarding the tribunal's findings it is not necessary to consider those grounds Reference was also made to the latter part of my judgment (Ex. P-2) and pointed out the fact that I had proceeded on the basis that the decision reported in 1963 (1) KLR 455 : (AIR 1964 Kerala 227), would apply and based upon these approaches made by this court in Ex. P-2 judgment, the learned Government Pleader attempted to argue that there has been no decision of that case on merits and that the question of the applicability of the Madras Rules was not raised and not adjudicated upon by this court. It is, therefore, argued that there is no question of applicability of constructive res judicata also in this case.

22. The question is whether after the decision rendered by this court in Ex. P-2 it is still open to the State to initiate fresh disciplinary proceedings against the petitioner on the same cause of action, though under different set of rules, namely, the Madras Rules. There can be no controversy that the proceedings contemplated ngainsl the petitioner and the enquiry said to be conducted are really for the alleged acts stated to have been committed by the petitioner on 2nd and 9th January 1960 by canvassing voles for the candidate in the elec-tions referred to in the order. Ex. P-1.

23. The .Supreme Court has considered the question regarding the applicability of the doctrine of res judicata to writ proceedings from four points of view : (i) under what circumstances a decision rendered in a writ petition under Article 32 of the Constitution operates as res judicata in a subsequent writ petition under Article 32 as between the same parties; (ii) when does a decision rendered by the High Court in proceedings under Article 226 operate as res judicata in a subsequent writ petition under Article 32 of the Constitution; (iii) the circumstances under which a decision rendered under Article 226 of the Constitution by a High Court will operate as res judicata in a subsequent wril petition filed before Hie High Court under Article 226 and (iv) as to the circumstances under which a decision rendered in proceedings under Article 226 of the Constitution by the High Court will operate as res judicata as between the same parties in a subsequent suit.

24. It may be necessary in this case only to note the decisions that deal with point No. (3) referred to above because that if the question which directly arises before me, namely, how far the decision rendered by this court in Ex. P-2 on a former occasion in a proceeding under Article 226 of the Constitu-tion operates as res judicala in the present proceedings. It is necessary in this connection to refer to the various other decisions of the Supreme Court relating to the various aspects referred to by that Court, laying down principles regarding applicability of res judicata to wril proceedings.

25. The first question us to the circumstances under which a decision rendered in a wril petition under Article 32 of the Constitution will operate as res judicata in a subsequent wril petition filed under Article 32 between the same parlies, came up for consideration before the Supreme Court in M. S. M. Shanna v. Shree Krishna Sinha, AIR 1960 SC 1186. The judgment in that decision was rendered by the learned Chief Justice Sinba, and it was a unanimous view expressed by the Supreme Court. In that decision the parly bad originally filed a wril petition under Article 32 of the Constitution raising a controversy regarding the powers and privileges of a legislature of a State prohibiting the publication of proceedings of the State Legislature. That was adjudicated upon by the Supreme Court and decided against the party in a previous decision reported in AIR 1959 SC 395. The petitioner filed a second writ petition under Article 32 of the Constitution raising the same point and requesting the Supreme Court to adjudicate on the same controversy. The Supreme Court held that the second writ petition was barred by the principle of res judicata and therefore not maintainable.

26. The argument that was advanced before the Supreme Court appears to be that the previous decision rendered by the Supreme Court and reported in AIR 1959 SC 395 was given on a wrong appreciation of the legal position and therefore the parly is entitled to maintain a second writ petition under Article 32 invoking the jurisdiction of the Supreme Court again. This contention of the petitioner was controverted on behalf of the State by urging that the second writ petition under Article 32 was barred by res judicata by virtue of the decision rendered by the Supreme Court on the former occasion.

27. Chief Justice Sinha states what exactly is the principle underlying the doctrine of res judicala. The learned Chief Justice observes at page 119:

'The rule of res judicata is meant to give finality to a decision arrived al after due contest and alter hearing the parties interested in the controversy.'

It will be seen from the above extract that according to the Supreme Court the rule underlying the principle of res judicata is to give finality to a decision arrived at after due contest and after hearing the parlies interested in the controversy. The learned Chief Justice also adverts to the question as to whether the correctness or otherwise of a previous decision ran be taken into consideration to see whether it will operate as res judicata in a subsequent proceeding; and the learned Chief Justice proceeds at page 1190:

'For the application of the general principles of res judicala, if is not necessary to go into the question whether the previous decision was right or wrong.''

It will thus be seen that the question whether the previous decision is right or wrong is absolutely immaterial in applying the doctrine of res judicala to a subsequent proceeding. Therefore it will be seen that according to the Supreme Court the principle underlying the doctrine of res judicala is (a) to give finality to a decision rendered by a competent court after due contest and after hearing the parties interested and (b) that such a decision will operate as res judicala between the same parlies irrespective of the fact whether the previous decision is right or wrong. The Supreme Court ultimately held that the second application filed by the parly under Article 32 of the Constitution is barred by the principles of res judicala by virtue of the earlier decision rendered by the Supreme Court in the petition under Article 32 between the same parties.

28. Therefore it will he seen that the Supreme Court has applied the doctrine of res judicata to proceedings under Article 32 of the Constitution, as between the same parlies when substantially the same questions are sought io be adjudicated over again in a subsequent proceeding. It will be seen that Mr. Justice Gajendragadkar (as he then was) was also a party to fhe above decision of the Supreme Courl. I am particularly referring to this aspect because the same learned Judge has delivered two other decisions which will be referred to afterwards. That the doctrine of res judicala will apply to proceedings under Article 32 of the Constitution is now settled by the decision of the Supreme Court referred to above.

29. The second question is as to under what circumstances a decision rendered by a High Court in proceedings under Arlicle 226 of the Constitution can be pleaded as res judicata in proceedings subsequently taken under Article 32 before the Supreme Court. This question was considered by the Supreme Court in Daryao v. State of U.P. AIR 1901 SC 1457. To this decision Mr. Justice Gajendragadkar (as he then was) and Sarkar, Wanchoo and Das Gupta, JJ., who were parties to the earlier decision referred to above were also members of the Bench and it is Mr. Justice Gajendragadkar as he then was who delivered the judgment for the court. It will be seen that in this case the petitioner had moved the Allahabad High Courl on a former occasion by a writ petition under Article 226 challenging the decision of the Board of Revenue interpreting sec lion 20 of the U.P. Land Reforms Act. But by the lime the writ petition came up for bearing a Full Bench of Uie Allahabad High Court had already interpreted the same provision which interpretation was against the contention that was taken up by the writ petilioner under Article 226 and when the writ petition came for hearing the writ petitioners did not press the same in view of the decision of the Allahabad High Court and so it was dismissed.

30. The petitioner filed on 14-3-1956 a pelilion in the Supreme Court under Arlicle 32 challenging the same decision of the Hoard of Revenue. The very same grounds of allack that were levelled against that order in proceedings under Arlicle 226 and which were allowed to be dismissed by court because of the Full Bench decision of the Allahabad High Court were again raised in the Supreme Court in the application filed under Article 32. Objection was taken on behalf of the State to the maintainability of the writ pelilion under Arlicle 32 before the Supreme Court, and the decision of the Allahabad High Court rendered in the writ petition under Arlicle 226 was pleaded as operating as res judicata in those proceedings. The pelilioner however urged that inasmuch as there is a fundamental right guaranteed to the citizens to approach the Supreme Court under Arlicle 32 that sacred right, should not be whittled down by any application of the rule of res judicata.

31. Examining the right under Article 32 of the Constitution the Supreme Courl expressed the view lhal the right to approach the Supreme Court is no doubt a fundamental right by itself and that the said aspect will have to he borne in mind when dealing with the objec-tion raised by the State regarding the bar of res judicala in entertaining an application under Article 32. The Supreme Courl poses the question arising for decision before it, namely, as to whether the rule of res judicala is merely a technical rule or one based on high public policy, and the learned Judge observed at page 1461 :

'But is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in Section 11 of the Code of Civil Procedure, has no doubt some technical aspects, for instance, the rule of constructive res judicala may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of fhe public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.'

It will be seen that three principles emerge : --(a) in the interest of the public at large a finality should attach to decisions given by courts of competent jurisdiction (b) again in public interest individuals should not be vexed twice over with the same kind of litigation, and (c) the rule of constructive res judicata is itself founded on considarations of public policy. After laying down these principles, the Supreme Court wrote extracts from Halsbury's Laws of England, decision referred to in Smith's Leading Cases, and Corpus Juris. After referring to these the Supreme Court comes to the conclusion that the contention that the rule of res judicata which is a technical rule cannot be applied to petitions under Article 32 should be rejected. The Supreme Court also observes that a judgment rendered by the High Court in a writ petition under Article 226 is binding between the parties in respect of the same matter unless it is reversed or modified in appeal. About the binding character of the judgment, the Supreme Court observes at page 1462 :

'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 basis of the administration of justice on which the Constitution lays so much emphasis.'

32. The discussion on this aspect is ultimately wound up by the Supreme Court at page 1463 thus:

'In other words, an original petition for a writ under Article 32 cannot take the place of an appeal against the order passed by the High Court in the petition filed before it under Article 226. There can be little doubt that the jurisdiction of this court to entertain applications under Article 32 which are original cannot be confused or mistaken or used for the appellate jurisdiction of this Court which alone can be invoked for correcting errors in the decisions of High Courts pronounced in writ petitions under Article 226. Tims, on general considerations of public policy there seems to be no reason why the rule of res jiidicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Article 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 parlies before the court, a fair opportunity has been given to both of them to prove their case, and at the end the court has pronounced its judgment or decision. Such a decision pronounced by a court of competent jurisdiction is binding between the parlies unless it is modified or reversed by adopting a procedure prescribed by the Constitution. In our opinion, therefore, the plea that the general rule of res judicata should not be allowed to be invoked cannot be sustained.'

33. The Supreme Court also rejected the plea that the decision given by the High Court under Article 226 will not operate as res judicata when the Supreme Court deals with a petition under Article 82 because the High Court cannot exercise jurisdiction under that Article.

34. After adverting to instances where a High Court may have declined to interfere on the ground of laches or delay or on the ground that the matters in controversy have to be more properly gone into not under proceedings under Article 226 but in a civil suit, the Supreme Court observes at page 1484 as follows:

'If, however, the mailer has been considered on the merits and the High Court has dismissed the petition for a writ on the ground that no fundamental right is proved or its breach is either not established or is shown to be constitutionally justified there is no reason why the said decision should not be treated as a bar against the competence of a subsequent petition filed by the same party on the same facts and for the same reliefs under Article 32.'

35. Ultimately the Supreme Court lays down the principle applicable to such cases, at page 1465.'

'We hold that if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Article 226 is dismissed not on the merits but bacause of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would ba a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty oi laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata.'

36. Having laid down all the propositions referred to above the Supreme Court ultimately held that the petitioners before It had already moved the High Court in proceedings under Article 226 seeking identical reliefs, and on the points of law raised by them, inasmuch as it had been concluded by an earlier Full Bench decision of the Allahabad High Court, it was held that they did not press the writ petition. liven in such a case the Supreme Court holds that the points of law raised before the High Court were argued and dismissed, because of the judgment of the Allahabad High Court and that such a disposal must be considered to be a disposal of the writ petition on merits. And as the dismissal of the petition under Article 226 was on merits the said dismissal operates as a bar of res judicata to the petitioner approaching again the Supreme Court under Article 32 of the Constitution.

37. This decision lavs down that the principle of res indicate is based on high public policy and that if a writ petition under Article 226 of the Constitution is disposed of on merits that decision will operate as res judi-cata. This decision also goes to the extent of holding that a dismissal of the writ petition on a point of law will be a decision on merits. I am particularly laying emphasis on this aspect because, as I have already indicated, the contention of the State in this case is that in the previous writ proceedings this court had no occasion to consider the applicability or otherwise of the Madras Rules and that the previous writ petition was disposed of only on the basis that either the Kerala Rules or the T. C. Rules apply.

38. The principle laid down by the Supreme Court that if there has been a decision rendered by the High Court in a petition under Article 226 on merits it will operate as res judicata in another proceeding filed on the same cause of action under Article 32 is again reaffirmed by a later decision in Joseph Pothen v. State of Kerala reported in 1965 Ker LJ 660 : (AIR 1965 SC 1514). In this case Mr. Justice Subha Rao has dealt with this aspect of the matter.

39. The third point is as to when exactly a decision rendered by the High Court in a proceeding under Article 226 of the Constitution will operate as res judicata in a subsequent proceeding taken by the same party under Article 226. This aspect of the question has been considered by the Supreme Court in Devilal v. Sales Tax Officer, AIR 1965 SC 1150. But before I deal with that decision it is necessary to refer to an earlier decision of the Supreme Court in Amalgamated Coalfields v. Janapad Sabha, AIR 1964 SC 1013. In this decision also it will be seen that it was Mr. Justice Gajendra-gadkar (as he then was) who had delivered the judgment on behalf of the court. I am referring to this decision because some of the observations in that judgment have been relied on by the Government Pleader appearing on behalf of the State in this case, that the Supreme Court has taken the view that the principles of res judicata generally, and the principles of constructive res judicata in particular, cannot be applied to proceedings either under Article 32 of under Article 226 of the Constitution. I will immediately show that this contention of the learned Government Pleader is not supported by the judgment of the Supreme Court, the observations in which have been later on explained by Chief Justice Gajendragadkar in AIR 1965 SC 1150.

40. In AIR 1964 SC 1013 the parties had challenged the levy of coal tax for a particular period under Article 32 of the Constitution, but the Supreme Court did not accept that plea and the levy was held to be legal.

41. For a subsequent period the party challenged the demand that was made by the Revenue officers in proceedings under Article 226 before the Madhya Pradesh High Court. The Madhya Pradesh High Court look the view that inasmuch as the party had approached the Supreme Court in respect of a previous assessment under Article 32 and had failed, that decision of the Supreme Court operated as a bar to the maintainability of a writ petition under Article 226, and on this ground the writ petition was dismissed.

42. The petitioners challenged the derision of the Madhya Pradesh High Court before the Supreme Court and the opposite party raised the contention that the decision of the Supreme Court rendered earlier under Article 32 operated as res judicata. This contention was rejected by the learned Judges of the Supreme Court. The Supreme Court observed that the question to be considered then was whether the general principles of res judicata applied to writs under Article 32 of the Constitution. So far as that is concerned, the Supreme Court refers with approval to the earlier derisions rendered by it in AIR 1960 SC 1186 and AIR 1961 SC 1457 to which I have already referred, and states that there can be no doubt that the general principles of res judicata applies to writ petitions filed both under Articles 32 and 226 of the Constitution Therefore, the Supreme Court refers in this decision also that the doctrine of res judicata applies to proceedings under Articles 32 and 226.

43. The Supreme Court then considers the question as to whether the principle of constructive res judicata applies to petitions filed either under Article 32 or under Article 226 when the dispute raised by the parly is in res-peet of a different period, namely, an year different from that involved in the prior decision. So far as that is concerned, the Supreme Court deals with the merits of the elaim made by the party regarding the assessment for the previous year which were challenged under Article 32 as well as the ground of attack that was being taken in the subsequent writ petition before the High Court in respect of a totally different period. The Supreme Court observes at page 1020 of the report as follows:

'The grounds now urged are entirely distinct and so, the decision of the High Court can he upheld only if the principle of constructive res judicata can be said to apply to writ petitions filed under Article 32 or Article 226. In our opinion, constructive res judicata which is a special and artificial form of res judicata enacted by S 11 of the Civil Procedure Code should not generally be applied to writ peli-tions filed under Article 32 or Article 226. We would be reluctant to apply this principle to the present appeals all the more because we are dealing with cases where the impugned tax liability is for different years.'

The Supreme Court, no doubt, has expressed in the extract given above the view that they will be very reluctant to apply the principles of res judicala to proceedings under Article 32 or Art 226 more especially because they were dealing with petitions filed in respect of assessments made for different years. The Government Pleader has placed considerable reliance upon the observations made by the Supreme Court and extracted above as amounting to a decision rendered by the Supreme Court that the principle of res judicata should not be applied to writ petitions under Article 32 or Article 226 of the Constitution.

44. If these observations had stood by themselves, it may be possible to argue that the principles laid down in the earlier decisions on the applicability of the doctrine of res judicata to proceedings under Article 32 and Article 226 of the Constitution and which have been reaffirmed in the earlier part of the judgment in this decision itself have been modified by these observations contained in the latter part of the judgment. But having gone through the decision very carefully, with great respect to the learned Judges, those observations as laid down by the Supreme Court itself later will have to be understood in the context in which they appear. The Supreme Court has categorically laid down in the earlier part of its judgment the principles applicable, and after adverting to the two earlier decisions held that the general principles of res judicala applies to writ petitions under Articles 32 and 226. Having categorically said that the principles so apply, it is very difficult to accept the contention of we learned Government Pleader that the Supreme Court has practically given the go-by to the same principle laid down in the earlier part of the judgment by the observations made in the concluding part of the judgment. The position regarding those observations is clearly seen limited by the Supreme Court itself. The Supreme Court has referred to the fact that the ground of attack raised by the writ petitioner is totally different from the ground of attack raised on the former occasion and the order of assessment challenged in the subsequent writ petition related to a period different from the one considered on the previous occasion. The Supreme Court has observed that they are not therefore, prepared to invoke the doctrine of res judicata or the principle of constructive res judicafa in dealing with such a case.

45. Whatever ambiguity that may be in these observations which have been taken advantage of by the learned Government Pleader, has been clarified by the Supreme Court in the decision rendered by them in AIR 1965 SC 1150. The decision in AIR 1964 SC 1018, as I have already pointed out earlier, was a unanimous decision of the court rendered by Mr. Justice Gajendragadkar (as he then was). Gajendragadkar, as Chief Justice delivers the unanimous judgment in AIR 1965 SC 1150 explaining particularly the observations regarding the applicability of the principles of constructive res judicata occurring in certain parts of the judgments reported in AIR 1964 SC 1018.

46. In AIR 1065 SC 1150 it will be seen that an assessee challenged the assessment of sale-lax for a particular year (1957-58) under Article 226 in a writ petition before the Madhya Pradesh High Court. The High Court dismissed the writ petition on merits and that decision was confirmed by the Supreme Court on appeal. The petitioner again filed a second writ petition under Article 226 before the High Court challenging the same assessment order passed for the year 1957-58 but raising different grounds of allack, which he had not taken in the previous writ petition filed by him under Article 226, which was dealt with by the High Court and which decision was confirmed by the Supreme Court on a former occasion.

47. The High Court, no doubt, entertained the second writ petition under Article 226 and considered the claim of the party on merits and ultimately dismissed the writ petition. The party went up on appeal against the decision of the High Court to the Supreme Court by obtaining special leave. Objection was taken by the State that the second writ petition filed by the party should not have been entertained by the Madhya Pradesh High Court Inasmuch as it is barred by the principles of constructive res judicata because of the dismissal of the prior application under Arti-cle 226.

48. Chief Justice Gajendragadkar, deli-vering the unanimous judgment of the court poses the question arising for consideration by the Supreme Court as whether it is open to an assessee to challenge the validity of the same order twice by two consecutive writ petitions; or in other words, the learned Chief Justice asks whether the principle of constructive res judicala is applicable to writ petitions.

49. This is exactly the question which arises for consideration before me here, as to whether the doctrine of constructive res judicala applies as againsl the State when it attempts to take fresh disciplinary action for the same acts againsl the petitioner on the basis of the Madras Rules.

50. Before the Supreme Court the con tention that was raised by the assessee was that when a party invokes the very high prerogative jurisdiction vested under Article 226, it is absolutely meaningless to invoke the principle of res judicala to nullify the claims that may be available to the party.

51. The learned Chief Justice deals with this contention elaborately and observes as follows at page 1152 :--

' There can be no doubt that the fundamental rights guaranteed to the citizens are a significant feature of our Constitution and the High Courts under Article 226 are bound to protect these fundamental rights. There can also be no doubt that if a case is made out for the exercise of its jurisdiction under Article 226 in support of a citizen's fundamental rights, the High Court will not hesitate to exercise that jurisdiction. But, the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Article 226. cannot be answered merely in the light of the significance and importance of the citizen's fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important considers tion of public policy is that the decisions pronounced by courts of compelent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fairplay and justice. '

'It may be conceded in favour of Mr. Trivedi that the rule of constructive res judicata which is pleaded against him tn the present appeal is in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure. This rule postulates that if a plea could have been taken by a party tn a proceeding between him and his opponent, he would not be permitted to take that plea against the same party In a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considers tion of public policy, because if the doctrine of constructive res judicala is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred.'

From the above extract it will be seen that according to the Supreme Court, there must he finality of decisions rendered by competent courts and no one should be enabled to face the same litigation over again. The Supreme Court also emphasises that if a plea could have been taken by a party in a proceeding between him and his opponent on a former occasion he must not be permitled to take that plea in a subsequent proceeding based on the same cause of action. On the basis of this principle the learned counsel for the petitioner questions the jurisdiction of the State Government to initiate fresh disciplinary action under the Madras Rules against the petitioner.

52. The Supreme Court later on explains the general observations made in the decision reported in AIR 1964 SC 1013 and states that those observations have application only in dealing with writ petitions in which the particular orders that are challenged relate to different years and the challenge also is on different grounds The scope of the observations in the decision reported in AIR 1964 SC 1013 has thus been restricted by the Supreme Court.

53. In the 1965 case (AIR 1965 SC 1150) the Supreme Court ultimately held that the second writ petition was barred by the prin-ciples of constructive res judlcata, and the learned Chief Justice observes at page 1153:

' Considerations of public policy and the principle of the finality of judgments are impor-tant constituents of the rule of law and they cannot be allowed to be violated just because a citizen contends that his fundamental rights have been contravened by an Impugned order and wants liberty to agitate the question about its validity by filing one writ petition after another. '

From the Supreme Court decision referred to above, the following principles emerge : (a) the principle of constructive res judicata applies with equal force to writ petitions under Article 226, (b) finality of decisions rendered by courts of compelent jurisdiction is emphasised, (c) parties should not be made to face twice over the same kind of litigalion, (d) a plea which could have been taken by a party in a proceeding between him and his opponent, If not taken at the proper lime that party should not be permitted to take that plea against the same party in a subsequent proceeding on the same cause of action, and (e) the Supreme Court has explained the observations contained in their decision reported in AIR 1964 SC 1013.

54. The last aspect namely, ms TO when a decision rendered under Article 226 of the Constitution will operate as res judicata in a subsequent suit, has been considered in a recent decision of the Supreme Court in Gulabchand v. State of Gujarat. AIR 1965 SC 1153. No doubt it is not necessary to consider in this case the question as to when and in what all circumstances a decision rendered in a writ proceeding will operate as res judicata in a subsequent suit because we are concerned here only with the third question that has been deall with by the Supremo Court in the decisions referred to above. I am however referring to this decision because the earlier three decisions of the Supreme Court to which I have made detailed reference in the earlier part of this judgment have been referred to and quoted with approval in this later decision in AIR 1965 SC 1153. No doubt Mr. Justice Suhha Rao has taken a different view

55. In that case it will be seen that the party filed a writ petition in the Bombay High Court challenging the jurisdiction of the State Government to recover certain amounts on the basis that he was a surety of a party who had taken contracts under the State of Baria The High Court after considering the petition on the merits field that the petitioner continued to he surely and that the State was entitled to proceed against him and so dismissed the petition After this decision, the party instituted an original suit seeking a declaration that the State of Bombay was not entitled In proceed against him as a surely or recover amounts on that basis by virtue of a contract entered into by a third party and that his obligations as surely had come to an end.

56. The reliefs asked lor by the plaintiff in the said suit were almost identical with the reliefs asked for and once refused by the High Court in the writ petition filed under Article 226. Therefore objection was taken by the State that the decision of the Bombay High Court in the writ petition operated as res judicala and that the suit was not maintainable The trial Court, the appellate court as well as the High Court unanimously upheld the contention of the State that the decision rendered by the Bombay High Court in the writ petition under Article 226 operated as res judicata. No doubt, the High Court appears to have taken a slightly different view in respect of certain other points.

57. Inasmuch as the courts have held that the obligation of the plaintiff as surety continued to exist the party went up in appeal as against the decision of the High Court in the Supreme Court. The plaintiff urged that the view of the subordinate courts that his contention that he is not liable as surely was barred by res judicata is erroneous and has to be reconsidered by the Supreme Court A very extreme stand was taken, that even if identical reliefs on identical grounds have been asked for in an original petition under Article 226 and refused by the High Court, nevertheless a parly is entitled in law to ask for those identical reliefs on those identical grounds in a separate suit and that the decision in the writ petition will not operate as res judicata in law.

58. The Supreme Court has siated that the principle of constructive res iudicata does not arise for consideration in that case. The question which was considered by the Supreme Court was whether the decision in the writ proceedings could bo a bar in an original suit on account of its operating as res judicata.

59. Mr. Justice Raghuhar Daval, expressing the majority view of the court, very elaborately considers again the principles regarding the doctrine of res judieala and quotes with approval the various principles laid down on the question in the decisions reported in Am 1960 SC 1186, AIR 11)61 SC 1457, AIR 1964 SC 1013 and AIR 1965 SC 1150. The Supreme Court emphasises that the principle of res judi-cala is not based on any rule of technicality but is really based on very high principles of public policy so as fo put an end to litigation and give finality to judgments rendered by courts of competent jurisdiction and to save litigants from harassment a second time over again over the same cause of action. In short, the principles laid down in all the decisions referred to above have been reaffirmed and reiterated by the Supreme Court in this decision also.

60. In particular, the Supreme Court while overruling the view expressed by the Punjab High Court in this regard, categorically slates that they do not see why on all grounds that can he urged in support of or against a matter raised for decision tn a writ petition cannot be urged in a proceeding on it. These observations, if I may say so with respect, show that when parties place their contentions before court and invite a decision even in a writ petition they are bound to raise all grounds of attack or support available to them. The Supreme Court ultimately winds up the discussion on this point at page 1167:--

' As a result of the above discussion, we are of opinion that the provisions of Section 11 C. P. C. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a court competent 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. The nature of the former proceeding is immaterial.

We do not see any good reason to preclude such decisions on matters in controversy in writ proceedings under Articles 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 judieata. 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 judieata in a subsequent regular suit between the same parlies with respect to the same matter.'

If will be seen lhat the -Supreme Court no doubt, did not express any opinion on the question whether the principles of constructive res judicata could he 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 was not so raised therein. Thai question is really left open by the learned Judges because at page 1167 in paragraph 62, as I have already pointed out, the Supreme Court had made it clear that in view of the fact that identical questions raised before the High Court in a writ petition were being raised in the suit it was not necessary for them to consider the question of the applicability or otherwise of the doctrine of constructive res judieata in that decision. That is why they have made the observations at page 1167 leaving open that question and no doubt, the learned Government Pleader relied upon those observations as supporting the stand taken by the State.

61. The contention of the learned Government Pleader that the principle of res judieata or the principles of constructive res judieata do nol apply to writ proceedings cannot he accepted in view of the categorical statement of the law in the decision referred to above which is directly on the point, namely, AIR 1965 SC 1150. In that decision, as 1 have already stated, the question directly arose for consideration as to how far the decision rendered between the same parlies in proceedings under Article 226 can operate as a bar in respect of the same matler as between the same parlies in a subsequent petition under Article 226, and the Supreme Court has categorically held that the principles of constructive res judtcala will apply. It may also be slated that Mr. Justice Raghubar Dayal who delivered the unanimous opinion in AIR 1965 SC 1158 was also a party to the earlier decision reported in AIR 1965 SC 1150 wherein it was held that the principle of res judicata applied to writ petitions under Article 226.

62. In this case, it will he seen that the previous decision in the writ petition, namely, Ex. P-2, was certainly on merits. The State had opportunity to raise all grounds of attack as against the contentions raised by the petitioner when they sought to sustain the disciplinary proceedings initialed against the petitioner by relying on any provision of the statute or Rules. It may be seen that though the petitioner had specifically referred in 0. P. No. 1493 of 1962 to the fact that he was an allotted officer from the Madras State, the State was prepared to proceed on the basis that the rules which applied to him were either the Kerala Rules of 1960 or the T. C. Rules of 1950. It may also be seen that the applicability of these two sets of rules relied on by the State has been decided in my earlier judgment reported in 1963 (1) Ker LR 455 : (AIR 1964 Kerala 227).

63. As already indicated in dealing with the decision of the Supreme Court in AIR 1961 SC 1457, the petitioner who invoked the jurisdiction of the High Court under Article 226 in that case did not press the petition, but on the other hand it was dismissed because in another case a Full Bench of the Allahabad High Court had expressed opinion on the question involved. Nevertheless, the Supreme Court held that the decision rendered by the High Court must he considered to be on merits, namely, that the legal contention raised by the party has been overruled, and it was no longer open to the party again to challenge the same order in proceedings under Article 32 of the Constitution.

64. I am referring fo this aspect for this purpose, i.e., to overrule the contention of the learned Government Pleader, that this court when passing Ex. P-2 had only adjudicated upon the question whether the disciplinary proceedings taken against the petitioner was sustainable if the rules that were in foree at the time when the petitioner was stated to have taken part in political activities were the 1950 rules. The question is what prevented the State even at that stage, to attempt to sustain the disciplinary proceedings as well as the order of dismissal passed by the State Government on the basis of also the Madras Rules. That an opportunity to urge all grounds of attack us against the claim made by the petitioner was available and that is not and cannot certainly be disputed. It must be mentioned here that the State has no such grievance in these proceedings. There was a contest between the parties on the legality or validity of the disciplinary proceedings taken by the State. The parties did have a fair opportunity of placing their cases before the court and a decision was taken on the basis of all the Rules placed before court by the petitioner as well as the State; and if that is so, in my view, the doctrine of constructive res judicata as laid down by the Supreme Court in AIR 1965 SC 1150 directly applies to the particular circumstances of this case. Having once attempted to sustain the disciplinary proceedings taken against the petitioner on the basis of the Kerala Rules and in the alternative on the T. C. Rules and having failed to take any other alternative plea, it is no longer open to the State now to fall back upon the Madras Rules and initiate fresh disciplinary proceedings against the petitioner for the same acts.

65. I have already adverted in discussing the various decisions of the Supreme Court, to the fact that the observations made in AIR 1904 SC 1013 regarding the reluctance of the learned Judges to apply the principle of constructive res judieata to writ petitions in which assessment for different years are being challenged have been explained by the Supreme Court in the later decision in AIR 1965 SO 1150: and all these decisions have been quoted with approval and the principles laid down there have been reiterated and reaffirmed in the said decision reported in AIR 1965 SC 1150. Therefore, in my view the contentions of the appellant that the proceedings contemplated by the State on the basis of the Madras Rules must be held to be barred by constructive res judicata by virtue of the decision rendered by this court evidenced by EX. P-2 must be accepted.

66. Therefore, the orders Exs. P-3 and P-4, in so far as they place the petitioner under suspension and contemplate taking fresh disciplinary action against the petitioner will have to be quashed, and Ex. P-4 passed on the directions contained in Ex. P-3 to that extent will also have to be quashed. The directions contained in Ex. P-3 directing the reinstatement of the petitioner in service will stand and will he given effect to by the authorities concerned. The writ petition is allowed accordingly. No costs.


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