A’ is an inspector in police service. He is dismissed from service by the D.I.G… ‘A’ files a writ in the High Court on the basis that no reasonable opportunity was given to him for hearing and dismissal action was mala fide… Will he be successful?

Question: ‘A’ is an inspector in police service. He is dismissed from service by the D.I.G police for in disciplinary activities. ‘A’ files a writ in the High Court on the basis that no reasonable opportunity was given to him for hearing and dismissal action was mala fide. This petition was dismissed.

After this, he instituted a suit challenging his dismissal under Article 311 (2) of the Constitution on the ground that he could be dismissed only by the I.G. police who was his appointing authority. Will he be successful in his suit? [UP C.J. 2006]

Find the answer to the mains question only on Legal Bites. [‘A’ is an inspector in police service. He is dismissed from service by the D.I.G… ‘A’ files a writ in the High Court on the basis that no reasonable opportunity was given to him for hearing and dismissal action was mala fide… Will he be successful?]

Answer

The issue to be decided in the suit is whether the principle of constructive res judicata would apply on the writ petitions and subsequently bar filing of a regular suit between the same parties and on the same matters in controversy.

The rule of constructive res judicata is an “artificial form of res judicata” and provides that if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject matter. This rule is engrafted in Explanation IV to Section 11 of the Civil Procedure Code, 1908.

The case given states that ‘A’ filed a writ petition challenging his dismissal from the post of police constable on the basis that no reasonable opportunity was given to him for hearing and dismissal action was mala fide. After his petition was dismissed, he filed a regular suit on the same matter with a new ground that that he could be dismissed only by the I.G. police who was his appointing authority. The subsequent plea was an important plea and well within the knowledge of A. Thus, it could have well been taken in the earlier writ petition.

The Hon’ble Supreme Court of India in M.S.M Sharma v. Dr. Shree Krishna, AIR 1960 SC 1186 held that the general principle of res judicata applies even to writ petitions filed under Article 32 or 226 of the Constitution of India and therefore if a writ petition filed by a party is considered on merits and is dismissed, the decision is binding on the parties. It is not open to a party to ignore the said judgment and again move on the same facts in another court.

Therefore, the suit being barred due to the principle of constructive res judicata, is not maintainable.

The facts in the question is from the landmark case of State of Uttar Pradesh v. Nawab Hussain (1977) 2 SCC 806. The Hon’ble Supreme Court of India held in the case, “when any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eyes of the law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and therefore, is taken as decided”.

---

Important Mains Questions Series for Judiciary, APO & University Exams

1. CPC Mains Questions Series: Important Questions Part – I of X
2. CPC Mains Questions Series: Important Questions Part – II of X
3. CPC Mains Questions Series: Important Questions Part – III of X
4. CPC Mains Questions Series: Important Questions Part – IV of X
5. CPC Mains Questions Series: Important Questions Part – V of X
6. CPC Mains Questions Series: Important Questions Part – VI of X
7. CPC Mains Questions Series: Important Questions Part – VII of
8. CPC Mains Questions Series: Important Questions Part – VIII of X
9. CPC Mains Questions Series: Important Questions Part – IX of X
10. CPC Mains Questions Series: Important Questions Part – X of X