Title not extracted — [1995] Supp. 4 S.C.R. 16

The Judgment of the Court was delivered by B PUNCHHI, J. Whether the plea of constructive res judicata was rightly raised against the appellant, in the facts and circumstances of this case, is the significant question, \vhich arises for determination in this appeal by special leave, against the judgment and decree dated 13-8-1974 of the Punjab and Haryana High Court at Chandigarh, in Regular First c Appeal No. 156 of 1965.

Supportive of the abovesaid appeal is a highly belated special leave petition, invited by this Court on 6-12-1990 from the appellant, against the judgment and order dated 5-2-1962 of the Punjab High Court at Chan- D digarh inWrit Application (Civil) No. 1061of1961, in circumstances which we will mention later.

These can conveniently be disposed of by a common order.

The facts involved are not in dispute. A brief resume thereof will E sullice. The appellant, Nand Kishore joined service in the erstwhile Patiala State in May 1941. 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 com- pleted ten years qualifying :-.crvi~ he \Vas con1pulsorily retired. un January F 6, 1961 fron1 the service by an order in the follo\ving 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 G retirement from Government Service of Shri Nand Kishore, Assis- tant Food Distribution Branch, Punjab Civil Secretariat with im- mediate effect.

2. He will be entitled to such proportionate pension and death- H cum-rctiremcnt gratuity as n1ay he adn1issible under the rules.

NAND KISHORE 1•. STATE [PUNCHHI,J.] 21

Chandigarh A Dated the sd/- 6th January, 1961 E.N. Mang~t Rai, Chief Secretary <o Go11. 11 Punjab B 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, 1961 retiring him compulsorily. The writ petition came up for hearing before a division bench consisting of Tek Chand and 1.0. Dua, JJ. The impugned order of compulsory retirement c was challenged by him on a variety of grounds inter-alia urging that he was not governed by Rule 5.32 of the Punjab Civil Services Rules, Volume II and that rather he was governed by the new Pension Rules. All the pleas of the appellant were repelled. It was factually noted by the Bench that Rule 5.32 of the Punjab Civil Services Rules, Volume II clearly con- D templated the existence of power in the Government to retire a permanent servant compulsorily after 10 years of qualifying service. The writ petition > was dismissed on February 2, 1962. It is worth bearing in mind that the appellant did not at that stage question the validity of Rule 5.32 and the High Court too on its own did not engage itself to the question. The matter rested there. E

The scenario changed thereafter. In Moti Ram Deka & Ors. v. N.E. Frontier Railway & Ors., AIR (1964) SC 600 this Court was called upon to consider the validity of Rules 148 (3) of the Railway Rules. These Rules authorised the tcrn1ination of s0rvice of the raihvay en1ploycc by serving F hin1 with a notice for a requisite period, or paying him salary for the said period, in lieu of notice. This Court held that a person who substantively holds a permanent post had a right to continue in service subject to two exceptions, i.e., (i) superannuation; and (ii) compulsory retirement. The second exception was affirmed by this Court with the reservation that Rules G of compulsory retirement would be valid if having fixed a proper age of superannuation, they permit compulsory rctiren1cnt after putting in a min- imum period of service. This Court observed that if the compulsory retire- ment permitted the authority to retire a public servant at a very early stage of his career, the question whether such a Ruic would be valid might have to be considered on a proper occasion. H

22 SUPREME COURT REPORTS (1995] SUPP. 4S.C.R.

A Encouraged by the decision in Moti Ram Deka's case, the appellant on February 24, 1964, filed a suit in the Court of Senior Subordinate Judge, Patiala for a declaration that the order of compulsory retirement dated January 6, 1961, passed as it was under Rule 5.32 of the Punjab Civil Services Rules, Volume II, after ten years of qualifying service, was invalid, and that he should be treated to have continued in the service of the Punjab B Government, enjoying all the necessary rights and benefits thereof . He also claimed the additional relief regarding payment of pay etc.

NANDKISHORE 1•. STATE[PUNCHHl,J.] 23

then prevailing in the High Court. On the other issue, whether the order dated .January 6, 1961 of compulsory retirement was illegal, void etc. the Court ruled that since Article 9.1 of the Pepsu Regulations had been struck down in Gurdcv Singh Sihdu's case and since Rule 5.32 of the Punjab Civil Services Rules,- Volume 11 was identical in nature the latter Rule therefore was invalid and consequently the impugned order of compulsory retirement passed thereunder was illegal and invalid. As a necessary consequence the suit of the appellant was decreed. He was granted the declaration that his compulsory retirement was illegal and consequently a·decree for Rs. 11321. 75 as arrears of salary etc. with costs.

The State of Punjab went up in Regular First Appeal before the C Punjab and Haryana High Court raising one and the only one point that the suit of the appellant was barred by principles of res-judicata, and consequently the order of compulsory retirement on the appellant could not be upset. The matter was placed before a division bench consisting of S.S. Sandhawalia and M.R. Sharma, JJ. who after considering the matter, on the basis of the case law by then developed, referred the following question of law for decision by a Full Bench : )

"Whether the decision of the High Court declining to issue a writ of mandamus 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 mem- bers, the added Presiding Judge being B.R. Tuli, .I. 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. H

24 SUPREME COURT RI:PORTS [1995j SUPP. 4 S.C.R.

A The aforesaid appeal appears to have been heard for quite sometime of 6-12-1990 by a three-member Bench, as would appear from the Court Proceedings extracted bekJ\v. The bench \Va~ goaded to invite a ~pl'.cial leave petition by the appellant agaimt the order dated 5-2-1962 of the Punjab High Court in Writ Application No. 1061 of 1961 accompanied by an appropriate application for condonation of delay. The Court Proceed- B ings dated 6-12-1990 read thus:

"We have heard this appeal for ;ome time. In the meantime we think it will be better if the petitioner is advised to file a special leave petition from the order of the High Court dated 5.2.1962 in c writ petition No. 1061/61 with an appropriate application for con- donation of delay. If that petition were lo be accepted then perhaps many of the points which are raised in this civil appeal may not be necessary to be gone into. In Lhi.s view of the matter, we adjourn this appeal for a period of 8 weeks. Counsel should file the SLP D within three weeks from today and serve a copy on the counsel for the State of Punjab. The counsel will so arrange the papers that when the matter is listed, both the civil appeal and SLP are ready for final hearing."

E The step of the three-member bench so taken reveals its mind as reflected in the above proceedings. Their Lordships wanted to do substan- tial justice. It was thought better to advise the petitioner to file a special leave petition. As we view this order, having invited the petitioner io file the special leave petition, it is no longer advisable or appropriate for us to retrace back the step put forward by the three-member Bench. It is significant to recall that the writ application \Vas dismissed on February 5, 1962 and the moment Moti Ram Deka's case appeared on the scene, the appellant on February 24, 1964, within limitation, brought forward his suit which got strengthened by Gurdev Singh 's case appearing within a couple of months of its filing. The appellant-special leave petitioner was thus bonajide pursuing an appropriate remedy for all these years. Jn these circumstances, we think that an appropriate case for condonation of delay of the intervening period has been made out. We, therefore, allow CC 11644/91 and condone the long durated delay in these exceptional cir- cumstances. On doing so, we grant leave to appeal. The appeal thus arising and the Civil Appeal No. 632 of 1975 may now be disposed of together.

NAND KISHORE v. STATEiPUNCHllI,.I.] 25

As said before it has never been disputed that Rule 5.32 of the A Punjab Civil Services Rules, Volume II is identical in text, tern1s and purport with the second proviso to Article 9. Lof the Pepsu Service Regula· tions. Gwdev Sing/i's case thus would mane.late us lo hole.I that Rule 5.32 of the Punjab Civil Services Rules, Volume II should meet the same fate, hole.ling that the Rule be struck down as invalid since it contravenes Article B 311(2) of the Constitution. Hole.ling 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-a<lopte<l, let us other· wise examine the view of the Hon'ble Judges of the Full Bench of Punjab C and Haryana High Court on the question formulated. It is well known that the general principle underlying the doctrine of res-judicara 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 appel· D late authorities, and the other principle is that no one should be made to face the same kind of litigation twice over, because suc.h a process would be contrary to considerations of fairplay and justice. These principles stand enunciated in Dmyao and Others v. The State of U.P. & Others, [1962] 1 SCR 574. This court in 77ze Amalgamated Coalfields Ltd. & Anr. v. 77ze Janapada Sabha, Chhindwara, [1963] Supp. l SCR 172 opined that con· E structive res-judicata was an artificial form of res-judicata enacted by Sec· tion 11 of the Code of Civil Procedure and it should not be generally applied to writ petitions filed under Article 32 and Article 226 of the Constitution. The court then had the occasion to point out that when a matter related to taxation and assessment levied for a different year, the doctrine of res· judicata was itself inapplicable. This Court still spelled out F the binding effect of a decision made under Article 141 of the Constitution as follows:

''If for instance, the validity of a taxing statute is impeached by an ass.cssec \Vho is called upon to pay a tax for a particular year and the matter is taken to the High Court or brought before this Court G and it is held that the taxing statute is valid, it may not be easy to hold that the decision on this basic and material issue would not operate as res-judicata against the assesscc for a subsequent year. That, however, is a matter on which it is unnecessary for us to pronounce a definite opinion in the present case. In this conncc- H

26 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A tion, it would be relevant to add that even if a direct decision of this Court on a point of law does not operate as res-judicata in a dispute for a subsequent year, such a decision would, under Art. 141 have a binding effect not only on the parties to it, but also on all courts in India as a precedent in which the law is declared by this Court. The question about the applicability of res-judicata to B such a decision would thus be a matter of merely academic sig- nificance."

On another facet of res-judicata, this Court in Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jeejeeblwy, [1970) 3 SCR 830 had the occasion to observe as under : E "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 0f 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, hut not F \Vhen the cause of action is different, nor 1vhen the law has since the earlier decision been altered by a conipetent authority, nor \Vhen the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a trans~ action which is prohibited by law." (emphasis supplied)

G When this Court strikes down a statutory provision holding it to be uncon- stitutional, it derives its authority to do so under the ~onstitution. U n<ler Article 141, the law declared by it is of a binding character and as commandful as the law made by a legislative body or an authorised delegee of such body. The Court is thus a "competent authority" within the scope of the words above emphasised. On the other hand the majority view .,,

NANDKISHORE v. STATE[PUNCHl,J.) 27

expressed in the Full Bench decision that "the Courts of record including the Supreme Court only interpret the law as it stands but do not purport lo amend the same. Their Lordship's decisions declare the existing law but do nol enact any fresh law", is not in keeping with the plenary function of the Supreme Court under Article 141 of the Constitution, for the Court is not merely the interpreter of the law as existing but much beyond that. The B Court as a wing of the State is by itself a source of law. The law is what the Court says it is. Patently the High Court fell into an error in its appreciation of the role of this Court.

Bearing the above principles in mind what at best was said by the State of Punjab was that failure to raise the constitutionality of Rule 5.32 C in the writ petition preferred by the appellant would imply, on the principle of "might and ought", that the opportunity of controverting the matter had been lost and that it should on the principles of constructive res-judicata be taken that the matter had been actually raised and adversely decided. But in F01ward Construction Co. and Others v. Prabhat Manda/ and Others, D [1986] 1 SCC 100, this Court has taken the view that where a matter has been constructive in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided.

It would then have to be seen the twin play of the notion of deemed constitutionality and bar of constructive res-judicata. Raising the con- E stitutioiyili[y of a provision of law, as it appears to us, stands on a different footing than raising a matter on a bare question of law, or mixed question of law and fact or on fact. There is a presumption always in favour of constitutionality of the law. The onus is heavy on the person challenging it. It is by the discharge of onus that the presumption of constitutionality can be crossed over. When a person enters a Court for relief and does not challenge the constitutionality of the law governing the matters directly and substantially in issue, it only means and implies that he goes by the presumption of constitutionality. He cannot on this stance be deemed to have raised the question of constitutionality and the question of con- stitutionality 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 ques- tioned and decided against the appellant on the principles of "might and oughtn or it being 11 directly and substantially in issue 11 • [t cannot be taken as a rule that one of the pleas, either by the plaintiff or the defendant, in every H

28 SUPREME COURT REPORTS (1995( SUPP. 4 S.C.R.

A suit or proceeding, must of necessity relate to the constitutionality of the law on which the cause is founded or defended in order lo obviate the plea of constructive res~iudicata being rai~e<l in an eventuality. It cannot also be taken as a rule that constitutionality of the law involved is a nldlter directly and substantially in issue, and if not raised renders a mute decision in !avour of its constitutionality barring the plea being raised in a subsequent B suit. lf there be read such a rule in all civil litigation, it would, to our mind, be against public po,licy vexing and burdening the courts to go into the constitutionality of provisions of law in every case. When under the im- pugned rule, the Government assumed to itself the power to compulsorily retire a permanent government servant after ten years of qualifying service, c the court's act of striking that Rule as unconstitutional is the law which appeared on the scene, not only to break the presumption of con- stitutionality hut to declare it void. In a sense the offending provision was never there and in the other it was henceforth not there. In either event, it would be within the ambit of the emphasised word in Mathura Prasad's case. D It thus seems to us that the view of the Full Bench of the High Court was erroneous on first principles. In the question referred to the Full Bench, no assumption could be made that a statutory Rule was valid when the court declined to issue a writ of mandamus, or its being treated as res-judicata for the purpose of the subsequent suit. Matlmra Prasad's case did nol merely stop at dealing with decisions relating to the jurisdiction of the Court trying the earlier proceeding, but had further gone to say that the principles of constructive res-judicata would not apply when the law has since the earlier decision been altered by a competent authority. And in the context this Court is a competent authority lo alter the law when it declares it to be unconstitutional. Alteration does not limit alone to change therein but is inclusive of the power of striking down. Thus even if we were to decline the belated special leave petition of the appellant against the judgment and order of the High Court dated 5-2-1962 passed in Writ Application No. 1061 of 1962, the appdlant would be entitled to succeed in having the impugned order of the High Court upset in Civil Appeal No. 632 of 1975, for the suit of the appellant could nut, in any event, be held to be barred by principles of res-judicata.

Accordingly we would compositely allow both the appeals, sel aside the respective judgments and orders of the High Court holding that the

NANDKISHORE v. FATE[PUNCHHl,J.] 29

order of compulsory retirement cif the appellant under Rule 5.32 was void and inoperative and the appellant entitled to the meaningful relief of arrears etc. as claimed by him in the plaint, and in accordance with the judgment of the Trial Court. The appellant shall get his costs throughout only in Civil Appeal No. 632 of 1975.

K.T. Appeals allowed. B