TMI Blog1995 (9) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... 41. On the formation of Pepsu State he was taken as an Assistant with effect from September 1, 1956. On the merger of Pepsu with the State of Punjab, he was integrated as an Assistant in the Punjab Civil Secretariat at Chandigarh, in the Food Distribution Branch. Having completed ten years qualifying service he was compulsorily retired on January 6, 1961 from the service by an order in the following terms: ORDER OF THE GOVERNOR OF PUNJAB Sanction is accorded under the provisions of Rule 5.32(b) of the Punjab Civil Services Rules, Volume II, to the compulsory retirement from Government Service of Shri Nand Kishore, Assistant Food Distribution Branch, Punjab Civil Secretariat with immediate effect. 2. He will be entitled to such proportionate pension and death-cum- retirement gratuity as may be admissible under the rules. Chandigarh Dated the sd/- 6th January, 1961 E.N. Mangat Rai, Chief Secretary to Govt. Punjab The representations of the appellant to the Government and memorial to the Governor brought him no relief. Thereafter he moved the Punjab High Court in Writ Application No.1061 of 1961 praying for quashing of the order dated January 6, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinued in the service of the Punjab Government, enjoying all the necessary rights and benefits thereof. He also claimed the additional relief regarding payment of pay etc. Shortly after the institution of the suit, on April 1, 1964, this Court in Gurdev Singh Sidhu v. State of Punjab and Anr. [1964(7) SCR 587] got the opportunity to apply the principles evolved in Moti Ram Deka's case to a compulsory retirement case under the second proviso to Article 9.1 of the Pepsu Service Regulations as amended by a notification dated January 19, 1960. The said proviso empowered the Government retaining an absolute right to retire any Government servant after he had completed 10 years qualifying service without giving any reason and the government servant any right to claim special compensation on this account. This right however was not to be exercised by the Government except when it was in public interest to dispense with further services of a Government servant, such as on account of inefficiency, dishonesty, corruption or infamous conduct. This Court took the view that it was not permissible for a State while reserving to itself the power of compulsory retirement by framing Rules presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the assumption that a statutory rule was valid, operates as res-judicata in a subsequent suit instituted after the statutory rule had been declared as unconstitutional by the Supreme Court of India In the Full Bench constituted, the same learned Judges were members, the added Presiding Judge being B.R. Tuli, J. The learned Judges of the Full Bench could not agree to the answer and thus they differed. S.S. Sandhawalia, J. answered the question formulated in the affirmative and B.R. Tuli, J. agreed with him. M.R. Sharma, J. however answered the question in the negative. The decision was made on May 8, 1974 per majority and the question was answered in the affirmative. The case was ordered to go back to the Division Bench for decision. Then the Division Bench consisting of S.S. Sandhawalia and Manmohan Singh Gujral, JJ. on August 13, 1974 allowed the appeal of the State of Punjab following the dictum of the Full Bench. Aggrieved against the said decision, the appellant sought leave and so Civil Appeal No.632 of 1975 is before us to challenge principally the view of the Full Bench of the High Court. The aforesaid appeal appears to have been heard for quite sometime on 6-12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been disputed that Rule 5.32 of the Punjab Civil Service Rules, Volume II is identical in text, terms and purport with the second proviso to Article 9.1 of the Pepsu Service Regulations. Gurdev Singh's case thus would mandate us to hold that Rule 5.32 of the Punjab Civil Service Rules, Volume II should meet the same fate, holding that the Rule be struck down as invalid since it contravenes Article 311(2) of the Constitution. Holding so the order of compulsory retirement of the appellant dated January 6, 1961 is struck down and the appellant is held entitled to restoration of the decree of the Trial Court. Putting aside for the moment the course above-adopted, let us otherwise examine the view of the Hon'ble Judges of the Full Bench of Punjab and Haryana High Court on the question formulated. It is well known that the general principle underlying the doctrine of res-judicate is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities, and the other principle is that no one should be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erations of public policy. This decision was followed in State of U.P. v. Nawab Hussain [1977(3) SCR 428]. On another facet of res judicata, this Court in Mathura Prasad Bajoo Jaiswal Ors. v. Dossibai N.B. Jeejeebhoy [1970(3) SCR 830] had the occasion to observe as under: A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue.......A decision on an issue of law will be res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceedings, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law. (emphasis supplied) When this Court strikes down a statutory provision holding it to be unconstitutional, it derives its authority to do so under the Constitution. Under Article 141, the law declared by it is of a binding character and as commandful as the law made by a legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utionality and the question of constitutionality to have been decided against him and such matter to have been directly and substantially in issue. The constitutionality of the Rule relating to compulsory retirement cannot be deemed to have been questioned and decided against the appellant on the principles of might and ought or it being directly and substantially in issue . It cannot be taken as a rule that one of the pleas, either by the plaintiff or the defendant, in every suit or proceeding, must of necessity relate to the constitutionality of the law on which the cause is founded or defended in order to obviate the plea of constructive res judicata being raised in an eventuality. It cannot also be taken as a rule that constitutionality of the law involved is a matter directly and substantially in issue, and if not raised renders a mute decision in favour of its constitutionality barring the plea being raised in a subsequent suit. If there be read such a rule in all civil litigation, it would, to our mind, be against public policy vexing and burdening the courts to go into the constitutionality of provisions of law in every case. When under the impugned rule, the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
