NAWAB HUSAIN Vs. STATE OF U. P

JUDGEMENT

(1.) JUDGEMENT This is a plaintiffs second appeal in a suit for declaration that the order of his dismissal passed by the Deputy Inspector General of Police, Western Range, was ultra vires, illegal and without jurisdiction and he continued to be in police service of Uttar Pradesh. The suit was dismissed by the trial Court and the lower appellate court confirmed on appeal the decree of the trial Court.

(2.) THE two main questions which arise for decision in this appeal are; (1) whether the suit of the plaintiff was barred by the principles of constructive res judicata, his writ petition under Article 226 of the Constitution for similar relief having been dismissed by the High Court and (2) whether the Deputy Inspector General of Police was competent to dismiss the plaintiff from service of the Police Force of Uttar Pradesh, he being an officer below the rank of the Inspector General by whom the plaintiff was appointed as Sub Inspector of Police. Some other questions did arise in the courts below on the pleadings of the parties but I am not concerned in this appeal with those questions. The suit of the plaintiff was dismissed mainly on the finding that the Deputy Inspector General of Police would be deemed to be the authority who appointed the plaintiff as Sub Inspector of Police and the order of dismissal passed by him was valid and effective. On the issue of res judicata both the courts below decided against the defendant and held that the suit of the plaintiff was not barred by principles of res judicata.

(3.) SRI Upadhya for the respondent State contended that though the validity of the order of dismissal was not questioned by Nawab Husain on the ground that the Deputy Inspector General of Police was not the appointing authority and he was lower in rank than the Inspector General of Police who actually made the appointment of the petitioner, Nawab Husain, yet this ground could have been raised by him or might have been raised by him and ought to have been raised by him in the writ petition itself. Therefore, a subsequent suit raising those grounds would be barred by principles of constructive res judicata as the relief in the two proceedings was substantially the same and based on the same cause of action. Reliance has been placed by the learned counsel on a decision of the Supreme Court in the case of Devilal Modi v. Sales Tax Officer, Ratlam, AIR 1965 SC 1150. In that case the learned Judges of the Supreme Court held that while deciding the writs even though involving violation of fundamental rights the principles of res judicata cannot be ignored and general principles of res judicata include the applicability of principles of constructive res judicata. The learned Judges of the Supreme Court held that a second petition under Article 226 of the Constitution for the same relief was barred by the principles of res judicata, though based on different grounds, which were not raised and decided in a prior writ petition for the same relief which was dismissed. No doubt in so far as the decision cited goes, it declares the law with regard to a second writ petition under Article 226 of the Constitution filed in the High Court or under Article 32 of the Constitution filed in the Supreme Court for a relief which was the subject matter of a prior writ petition based on different grounds.